Harris v. USA

Filing 1

OPINION AND ORDER: Defendants § 2255 motion (ECF No. 64 in 1:21-cr-15) is DENIED. No certificate of appealability will issue. Signed by Judge Holly A Brady on 05/04/2023. (Copy mailed to pro se party)(sej)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA

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v.
WILL A. HARRIS, JR.

Cause Nos.

1:21-CR-15-HAB
1:23-CV-15-HAB

OPINION AND ORDER
Defendant has a history of felony convictions going back almost twenty years. When he
was sentenced in this Court last year on drug and gun charges, those convictions resulted in a
finding that he was a career offender. That designation resulted in a sentence of 262 months’
imprisonment. Believing that sentence to stem from ineffective assistance of counsel (“IAC”),
Defendant has moved to vacate under 28 U.S.C. § 2255. (ECF No. 64). That motion is fully briefed
(ECF Nos. 67, 68) and ready for ruling.
I.

Factual and Procedural Background
In January 2021, Defendant was a passenger in a vehicle that officers tried to pull over.

Knowing he had an active warrant, Defendant held a gun to the driver’s head and forced her to
lead officers on a ten-minute, high-speed chase. During the chase Defendant threw a gun and three
bags of methamphetamine from the speeding car. Defendant continued to resist even after the car
was stopped, punching one officer. Even after he was taken into custody, Defendant threatened the
officers, their wives, and their children with violence.
The methamphetamine was recovered and tested. The total drug weight was 61.3 grams
and, after accounting for purity, a “pure” methamphetamine weight of 30 grams was determined.
Based on these facts, Defendant was indicted on three counts: possession of
methamphetamine with the intent to distribute, possessing a firearm in furtherance of a drug

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trafficking crime, and being a felon in possession of a firearm. Attorney Anthony Churchward
(“Churchward”) was appointed to represent Defendant.
Defendant pleaded guilty to all counts via written plea agreement. As part of that plea
agreement, Defendant waived his rights to “appeal or to contest [his] conviction and all
components of [his] sentence or the manner in which [his] conviction or . . . sentence was
determined or imposed, to any Court on any ground other than a claim of ineffective assistance of
counsel, including . . . any post-conviction proceeding, including but not limited to, a proceeding
under” 28 U.S.C. § 2255. Defendant also agreed in the plea agreement that his drug offense
involved at least 5 grams but less than 50 grams of methamphetamine.
Drug weights would normally drive a drug trafficking defendant’s guideline calculation,
but not so here. Instead, Defendant’s guideline range was ultimately driven by § 4B1.1(c)(2),
which applies to defendants who (1) are guilty of multiple counts, (2) one of which is not a §
924(c) conviction, (3) another of which is a § 924(c) conviction, and (4) are career offenders. See
United States v. Powe, 394 Fed. Appx. 299, 301 (7th Cir. 2010) (outlining analysis under § 4B1.1).
This section applied to Defendant because he: (1) pled to multiple counts, (2) his 21 U.S.C. § 841
conviction was a controlled substance offense, (3) he pleaded guilty to § 924(c), and (4) he was a
“career offender” because he had prior Indiana dealing (2005 conviction for dealing in cocaine or
a narcotic drug) and battery (2013 conviction for Class D battery resulting in bodily injury)
convictions that were, respectively, controlled substance and crime of violence offenses.
Section 4B1.1(c)(2) of the Guidelines directs that qualifying defendants should be
sentenced to the “greater of”: (A) the “guideline range that results by adding the mandatory
consecutive penalty required by the 18 U.S.C. § 924(c) [ ] count . . . to the minimum and the
maximum” under the Guidelines for the other counts; or (B) the guideline range used in the table

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at U.S.S.G. § 4B1.1(c)(3). Since Defendant was entitled to a three-level reduction for acceptance
of responsibility, the table recommended a range of 262-327 months’ imprisonment. U.S.S.G. §
4B1.1(c)(3). That was higher than his guideline range on the other counts even with § 924(c)’s
five-year mandatory minimum added on (248-295 months’ imprisonment)1, so the sentencing
range set out in the table at U.S.S.G § 4B1.1(c)(3) was Defendant’s final Guidelines range.
Defendant objected to his battery conviction being counted as a crime of violence. That
objection was overruled. Defendant was sentenced to 262 months’ imprisonment: 202 months on
the drug count (Count 1), a concurrent 120-month term for being a felon in possession of a firearm
(Count 3), and 60 months consecutive to both counts for possessing a firearm during a drug
trafficking offense (Count 3). Defendant did not appeal. Instead, he timely moved to vacate his
sentence and filed a supplement, both under 28 U.S.C. § 2255.
B.

Legal Discussion

1.

28 U.S.C. § 2255
Relief under 28 U.S.C. § 2255 is reserved for “extraordinary situations.” Prewitt v. U.S.,

83 F.3d 812, 816 (7th Cir. 1996). In order to proceed on a motion under § 2255, a federal prisoner
must show that the district court sentenced him in violation of the Constitution or laws of the
United States, or that the sentence exceeded the maximum authorized by law, or is otherwise
subject to collateral attack. Id. A § 2255 motion is neither a substitute for nor a recapitulation of a
direct appeal. Id.; Belford v. U.S., 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds
by Castellanos v. U.S., 26 F.3d 717 (7th Cir. 1994). As a result:

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Defendant’s base offense level was 30 because of the drug weight (U.S.S.G. § 2D1.1), adjusted to 32 because of the
prior Indiana state convictions identified above. (U.S.S.G. § 2K2.1). Once all counts were grouped and Defendant
received a three-level reduction for acceptance of responsibility, Defendant’s combined offense level for Counts 1 and
3 was 31. Along with his criminal history category of VI, his guideline range, before the mandatory-minimum 60month sentence for the § 924(c) count, was 188-235 months’ imprisonment.

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[T]here are three types of issues that a section 2255 motion cannot
raise: (1) issues that were raised on direct appeal, absent a showing
of changed circumstances; (2) nonconstitutional issues that could
have been but were not raised on direct appeal; and (3) constitutional
issues that were not raised on direct appeal, unless the section 2255
petitioner demonstrates cause for the procedural default as well as
actual prejudice from the failure to appeal.
Belford, 975 F.2d at 313; see also McCoy v. U.S., 815 F.3d 292, 295 (7th Cir. 2016). Additionally,
aside from showing “cause” and “prejudice” from the failure to raise constitutional errors on direct
appeal, a § 2255 movant may alternatively pursue such errors after proving that the district court’s
refusal to consider the claims would lead to a fundamental miscarriage of justice. Johnson v.
Loftus, 518 F.3d 453, 455–56 (7th Cir. 2008). This general rule does not apply to claims of
ineffective assistance of counsel, which may be brought via § 2255 even if not pursued during a
direct appeal. Massaro v. U.S., 538 U.S. 500, 504 (2003).
2.

Defendant Waived Relief on any Grounds Other Than IAC
Waivers of direct and collateral review in plea agreements are generally enforceable.

United States v. Chapa, 602 F.3d 865, 868 (7th Cir. 2010); Jones v. U.S., 167 F.3d 1142, 1144–45
(7th Cir. 1999). Nevertheless, because a plea agreement is a contract and generally governed by
ordinary contract law principles, waivers contained in the agreements are unenforceable in some
cases akin to those in which a contract would be unenforceable, such as when the government has
materially breached the agreement, see United States v. Quintero, 618 F.3d 746, 750–52 (7th Cir.
2010), or the dispute falls outside the scope of the waiver, Bridgeman v. U.S., 229 F.3d 589, 591
(7th Cir. 2000).
Though disputes over plea agreements are “usefully viewed through the lens of contract
law,” the Seventh Circuit has recognized that the application of ordinary contract law principles to
plea agreements, “must be tempered by recognition of limits that the Constitution places on the

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criminal process, limits that have no direct counterparts in the sphere of private contracting.”
United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). For example, “while a contracting
party is bound by the mistakes of his lawyer, however egregious (his only remedy being a suit for
malpractice), the Constitution entitles defendants entering plea agreements to effective assistance
of counsel.” Id. at 637. Courts therefore repeatedly recognized that appellate and collateral review
waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the
plea agreement. United States v. Jemison, 237 F.3d 911, 916 n. 8 (7th Cir. 2001); United States v.
Hodges, 259 F.3d 655, 659 n. 3 (7th Cir. 2001); Bridgeman, 229 F.3d at 591.
Turning to Defendant’s waiver, the Court finds no basis to find the waiver ineffective.
Though Defendant has many complaints about the performance of Churchward, none of them
relate to the drafting or negotiation of the plea agreement. Nor does Defendant ever claim that the
plea was anything but knowingly and voluntarily made. The Court, then, finds that the waiver is
effective here, and bars any ground for relief other than IAC.2
3.

Churchward was not Ineffective in Challenging Defendant’s Designation as a Career
Offender
Defendant objects to his designation as a career offender, arguing his “past and predicate

offense of dealing in cocaine is in fact (by definition) broader than the generic definition of
distribute under 4B1.2.” (ECF No. 64 at 7). As a result, Defendant argues that his state dealing
charge should not have been considered a controlled substance offense. By failing to so argue,
Defendant claims that Churchward was ineffective.
Defendant is wrong. Addressing this precise argument, the Seventh Circuit held:

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This applies most prominently to Defendant’s substantive challenges to his § 924(c) conviction, contained in the
supplement to his motion. (ECF No. 67 at 2–3). No matter: for the reasons set out in the Government’s response (ECF
No. 68 at 12–13), Defendant’s § 924(c) arguments are meritless.

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[United States v.] Ruth[, 966 F.3d 642 (7th Cir. 2020),] held that the definition of
“controlled substance” in the Sentencing Guidelines is not limited to the definition
of “controlled substance” in the federal Controlled Substances Act. Id. at 654. In
reaching that conclusion, we acknowledged there was a circuit split on that question
with several circuits choosing an approach contrary to our own. Id. at 653. But
without a signal from the Sentencing Commission that it intended to incorporate
the federal definition into the Guidelines, we declined to do so ourselves. Id. at 652.
Since Ruth, we have rejected repeated arguments that we should abandon it. We do
so again here and affirm application of the career offender enhancement to these
defendants.
United States v. Jones, 56 F.4th 455, 504 (7th Cir. 2022). Defendant’s argument, then, is expressly
contrary to controlling Seventh Circuit precedent. Churchward could not be ineffective for failing
to raise such an argument. Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993).
4.

Because Defendant was Properly Designated as a Career Offender, his Drug Quantity
Arguments are Irrelevant
Most of Defendant’s motion and supplement is directed at what he perceives to be

Churchward’s failure to object to the drug weights used to calculate his guideline range under §
2D1.1. Defendant points to the failure to take personal use amounts out of the weight calculation
and failure to object to purity calculations, arguing that his guideline range was miscalculated as a
result. Whether Defendant is correct, he suffered no prejudice, so the Court need not examine
Churchward’s performance. 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 as
a result of the alleged deficiencies”).
As the Government correctly notes, and as set forth above, Defendant wasn’t sentenced
under the guideline range calculated in § 2D1.1. Instead, because of his multiple counts, § 924(c)
conviction, and status as a career offender, he was sentenced under the guidelines calculated in §
4B1.1(c)(3). (ECF No. 48 at 36). His drug quantity was irrelevant to his sentence, and

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Churchward’s failure to object to the drug quantity could not have been constitutionally deficient.
United States v. Thomas, 589 Fed. App’x 792, 793 (7th Cir. 2015).
III.

Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must “issue or

deny a certificate of appealability when it enters a final order adverse to the applicant.” A
certificate of appealability may be issued “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11 of Rules Governing Section
2255 Proceedings. The substantial showing 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
or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted); Barefoot v. Estelle, 463 U.S. 880,
893 & n.4 (1983). Because the Court finds that no reasonable jurist could conclude that Defendant
is entitled to relief, no certificate of appealability will be issued.
IV.

Conclusion
For these reasons, Defendant’s § 2255 motion (ECF No. 64) is DENIED. No certificate of

appealability will issue.
SO ORDERED on May 4, 2023.
s/ Holly A. Brady
JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT

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