Harris v. USA

Filing 1

OPINION AND ORDER: the courtSUMMARILY DISMISSES the petition filed pursuant to 28 U.S.C. § 2255, ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 3/21/12. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JOHN R. HARRIS,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent

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CAUSE NO. 3:12-CV-127 RM
(Arising out of 3:09-CR-112 RM)

OPINION and ORDER
John Harris pleaded guilty to sexual exploitation of a minor, in violation of
18 U.S.C. 2251(a)(one of seven counts charged in the superceding indictment),
and was sentenced to 326 months’ imprisonment. Mr. Harris is now before the
court requesting that his sentence be vacated, set aside, or corrected pursuant to
28 U.S.C. § 2255.
The rules governing petitions filed under 28 U.S.C. § 2255 provide that once
a motion is filed,
The motion, together with all the files, records, transcripts, and
correspondence relating to the judgment under attack, shall be
examined promptly by the judge to whom it is assigned. If it plainly
appears from the face of the motion and any annexed exhibits and
the prior proceedings in the case that the movant is not entitled to
relief in the district court, the judge shall make an order for its
summary dismissal and cause the movant to be notified.
Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts.
Mr. Harris’s plea agreement reveals that he was told of and understood the
maximum sentences for the offense to which he was pleading guilty, and that he

waived his right to appeal his conviction and sentence and to contest his
conviction and sentence in a § 2255 proceeding. The plea agreement was signed
by Mr. Harris, his attorney David Jones, and Assistant United States Attorney
John Maciejczyk and contained the following language in paragraph 9:
(c) I understand that a violation of Title 18, United States Code,
Section 2251(a), carries a term of imprisonment of a mandatory
minimum 15 years and not more than 30 years; a term of
supervised release of not less than 5 years and up to life; a fine of
$250,000 and a mandatory special assessment of $100.00, and that
as a term of sentencing I may also be ordered to pay restitution to
any identified victims of the offenses charged in the indictment.
(d) I understand that the U.S. Sentencing Guidelines are
advisory only, and that the specific sentence to be imposed on me will
be determined by the judge after a consideration of a pre-sentence
investigation report, input from counsel for myself and the
government, federal sentencing statutes, and the U.S. Sentencing
Guidelines.
(e) I understand that the law gives a convicted person the right
to appeal the conviction and the sentence imposed; I also understand
that no one can predict the precise sentence that will be imposed,
and that the Court has jurisdiction and authority to impose any
sentence within the statutory maximum set for my offense(s) as set
forth in this plea agreement; with this understanding and in
consideration of the government’s entry into this plea agreement, I
expressly waive my right to appeal or to contest my conviction
and my sentence or the manner in which my conviction or my
sentence was determined or imposed, to any Court on any
ground, including any claim of ineffective assistance of counsel
unless the claimed ineffective assistance of counsel relates
directly to this waiver or its negotiation, including any appeal
under Title 18, United States Code, Section 3742, or in any postconviction proceeding, including but not limited to a proceeding
under Title 28, United States Code, Section 2255.
(Emphasis in original).

2

Despite the waivers and admissions in his plea agreement, Mr. Harris now
challenges his sentence contending that his attorney provided ineffective
assistance at sentencing when he “failed to make necessary objections to the
application under 18 U.S.C. § 3553, or the fact of the age of consent of the alleged
minor girls,” and that his sentence was “very harsh.”
A plea agreement containing a waiver of the right to appeal and file a
petition under § 2255 can be collaterally attacked in a limited number of
circumstances, including challenges based upon contractual grounds such as
mutual mistake or breach, United States v. Cook, 406 F.3d 485, 487 (7th Cir.
2005), when a defendant claims the waiver was involuntary or counsel was
ineffective in negotiating the agreement, Mason v. United States, 211 F.3d 1065,
1069 (7th Cir. 2000), or when the sentence is greater than the statutory maximum
sentence for the offense of conviction. United States v. Bownes, 405 F.3d 634, 637
(7th Cir. 2005).
Mr. Harris said at his change of plea hearing that his plea was knowing and
voluntary, that he had read and understood the terms of the plea agreement, that
he told his counsel everything counsel needed to know to represent him in this
case, that he had discussed the plea agreement with his counsel before the plea
hearing, that he understood he was giving up his right to appeal or otherwise
challenge his sentence, and that he was satisfied with the representation his
counsel had provided. Mr. Harris also told the court that he understood what the
maximum penalties were for the offense to which he was pleading, that the court
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had the authority to impose any sentence within the statutory maximum set for
his offense, and that no one had made any promises or predictions, other than
those contained in the plea agreement and the predictive review of the sentencing
guidelines, as to what his sentence would be.
Mr. Harris’s sworn statements at the change of plea hearing are presumed
to be truthful, Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000), and
the record supports a finding that his guilty plea was “a voluntary and intelligent
choice among the alternate courses of actions open to him.” Berkey v. United
States, 318 F.3d 768, 773 (7th Cir. 2003) (quoting North Carolina v. Alford, 400
U.S. 25, 31 (1970)). The plea agreement clearly and unambiguously sets forth the
wavier of Mr. Harris’s right to appeal and to file a § 2255 petition, the court
explained the waiver to him during the plea colloquy, and he acknowledged that
he understood. Because Mr. Harris’s plea was informed and voluntary, the waiver
of his right to appeal or to file a § 2255 petition “must be enforced.” Nunez v.
United States, 546 F.3d 450, 453 (7th Cir. 2008).
To the extent Mr. Harris contends that he was provided ineffective
assistance because his attorney didn’t challenge the court’s findings under 18
U.S.C. § 3553, or address the issue of consent, his claims lack merit, don’t relate
to the negotiation of the waiver of his right to appeal, and are foreclosed by the
plea agreement.1 United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005).

1

The victims in this case were under the age of eighteen and were “minors” as defined in18
U.S.C. § 2256(1).

4

While a sentence greater than the statutory maximum sentence for a
defendant’s crime can be challenged even if the defendant executed a blanket
waiver of his appeal rights, United States v. Bownes, 405 F.3d 634, 637 (7th Cir.
2005), Mr. Harris was sentenced to 326 months (28 years). That sentence was
within the statutory maximum and the advisory guideline range.
Mr. Harris isn’t entitled to the relief he seeks. Accordingly, the court
SUMMARILY DISMISSES his petition filed pursuant to 28 U.S.C. § 2255 [Doc. No.
106].
SO ORDERED.
ENTERED:

March 21, 2012

/s/ Robert L. Miller, Jr.
Judge
United States District Court
cc:

J. Harris
AUSA Maciejczyk

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