HARRIS v. UNITED STATES OF AMERICA

Filing 19

OPINION. Signed by Judge Renee Marie Bumb on 3/3/2016. (TH, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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JAMES M. HARRIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

Civ. Action No. 14-6590 (RMB)
OPINION

BUMB, United States District Judge

This matter comes before the Court on Petitioner Harris’s
(“Harris”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody. (Harris v.
USA, 14cv6590 (RMB) (ECF No. 12.)) Harris alleged eight grounds
for relief from his conviction. For the reasons discussed below,
the § 2255 motion is denied.
I. BACKGROUND
On direct appeal of Harris’s convictions for conspiracy to
commit robbery affecting interstate commerce and conspiracy to
distribute and possess with intent to distribute cocaine, the
Third

Circuit

Court

of

Appeals

findings:

1 

made

the

following

factual

In January 2012, a grand jury returned a
superseding indictment charging Harris (also
known as “Gunplay” and “Smalls”) and three
others with conspiracy to commit Hobbs Act
robbery in violation of 18 U.S.C. § 1951(a)
and conspiracy to distribute and possess
with intent to distribute five kilograms or
more of cocaine in violation of 21 U.S.C. §§
841(a)(1),
841(b)(1)(A),
and
846.
The
charges arose from Harris’s involvement in a
plan to rob a cocaine stash house, which –
unbeknownst
to
Harris
and
his
coconspirators—was devised by special agents
of the Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF”).
In early July 2011, a confidential source
reported to the ATF that Shawn Cannon was
responsible
for
a
series
of
violent
robberies of drug dealers and users in
southern New Jersey. The confidential source
arranged for Cannon to meet with undercover
ATF Agent Stacy Brown. At the meeting, which
was held on July 19, 2011 in a parking lot
in Pennsauken, New Jersey, Brown pretended
to be a disgruntled cocaine courier for a
Mexican drug trafficking organization who
was looking for help with robbing his source
of supply. Brown explained that his job
entailed picking up kilogram quantities of
cocaine from different stash houses near
Cherry Hill, New Jersey, which were usually
occupied
by
two
armed
guards.
Brown
emphasized that the guards were dangerous,
and he needed an experienced crew. Cannon
responded, “[y]ou got the right people.”
Appendix (“App.”) 902. Francis also assured
Brown that she and Morgan were “trained to
go.” App. 905.
Follow-up meetings were held on July 20,
2011. At the first meeting, Cannon announced
that six people would be involved in the
robbery. Brown expressed his desire to meet
the
remaining
participants,
and
Cannon
indicated that another meeting could be
arranged
with
his
“back
up
soldiers,”
2 

including “Gunplay” (Harris) and “Rambo”
(Morgan). App. 469–70, 948. During the
second meeting, which occurred later that
day, Harris asked Brown several pointed
questions about the robbery, such as what
kind of guns the guards carried and whether
there would be lookouts around the stash
house. When Brown remarked that the cocaine
had to be removed from its original wrapper
before being resold, Harris acknowledged,
“[t]here's a stamp.” App. 957. Before the
meeting ended, Harris stated that he was
“ready” and described the intended robbery
as “another day at the job.” App. 975.
Between
July
20
and
27,
2011,
Brown
maintained phone communication with Cannon
and Francis, who in turn communicated with
Harris. Harris met again with his coconspirators on July 27 and during the
morning on July 28. At approximately 12:30
p.m. on July 28, Brown called Francis and
informed her that he was ready to execute
the plan. Brown instructed Francis to get
the rest of the crew together and to meet
him at the Cherry Hill Mall. Although
Francis complied with Brown's request, ATF
surveillance
of
a
conversation
between
Brown, Cannon, and Francis upon Cannon and
Francis's arrival showed that Cannon and
Francis were becoming suspicious of Brown
and believed him to be a law enforcement
officer. The robbery was not carried out,
and the co-conspirators parted ways several
days later.
At
6:00
a.m.
on
December
21,
2011,
approximately nine ATF agents arrived at
Harris's home with a warrant for his arrest.
Harris was handcuffed and put into the back
seat of a police patrol vehicle parked
outside. Three or four agents then spoke
with his parents, James Harris, Jr. (“Mr.
Harris”) and Esther Harris (“Mrs. Harris”),
in the living room. ATF Special Agent Greg
Sheridan asked Harris's parents to consent
to a search of the house. Mrs. Harris
3 

refused and urged Mr. Harris to do the same.
Mr. Harris agreed to consent but expressed
concern
about
possible
damage
to
the
property. Sheridan advised Mr. Harris that
he could limit the scope of the search to
Harris's room. Mr. Harris then reviewed and
signed a consent-to-search form on which he
wrote “garage only” (where Harris was living
at the time). App. 34.
After obtaining Mr. Harris's written consent
to search, Sheridan separately approached
Harris, who was still handcuffed in the
police vehicle, to obtain permission to
search his bedroom and car. Because he
believed Harris was too dangerous to be
released,
Sheridan
did
not
remove
the
handcuffs to permit Harris to complete a
written
consent
form.
Harris
orally
consented to the requested searches. While
searching Harris's room, the agents found
one red sweatshirt with the word “Gunplay”
and one black ballistic vest.
Harris moved before trial to suppress both
items. An evidentiary hearing was held, and,
on October 10, 2012, the District Court
orally denied the motion on the grounds that
the
warrantless
search
was
conducted
pursuant to Mr. Harris's valid consent.
Following a six-day jury trial, Harris was
convicted of both conspiracy counts.
The United States Probation Office prepared
a presentence investigation report (“PSR”).
The
PSR
calculated
that
Count
One
(conspiracy to commit Hobbs Act robbery)
carried an offense level of 21 U.S.S.G. §
2B3.1(a), (b)(6), and that Count Two (drug
conspiracy) carried an offense level of 36,
id. § 2D1.1(b)(1), (c)(3). PSR ¶¶ 60–61.
Because the offense level for Count One was
nine or more levels less serious than that
for Count Two, Probation disregarded Count
One and adopted a total offense level of 36.
PSR ¶ 62.6 Observing that Harris “appears to
have
been
the
least
involved
in
the
4 

conspiracy,” Probation awarded him a twolevel minor role adjustment on both counts.
PSR ¶¶ 65, 75–78, 81–84; see U.S.S.G. §
3B1.2(b). Harris's final offense level of
34,
combined
with
a
criminal
history
category
of
I,
yielded
an
advisory
Guidelines range of 151 to 188 months of
imprisonment. PSR ¶¶ 97, 105, 134. Both
parties objected to the PSR calculations.
The Government challenged the minor role
reductions, and Harris argued that his
minimal
role
in
the
drug
conspiracy
warranted a four-level adjustment on that
count. Harris also moved for a two-level
downward departure for sentencing entrapment
“and/or”
sentencing
factor
manipulation.
Supplemental Appendix (“Supp. App.”) 141.
Harris's sentencing hearing was held on
March 7, 2013. At the hearing, the District
Court agreed with the Government that Harris
was
neither
a
minor
nor
a
minimal
participant in the charged conspiracies. The
court therefore held that Harris's final
offense level was 36, which, combined with
his criminal history category of I, resulted
in an advisory Guidelines range of 188 to
235 months of imprisonment. The court next
addressed Harris's departure motion. While
it assumed it had the authority to depart
downwardly on the grounds of sentencing
entrapment
and
sentencing
factor
manipulation, the court declined to do so.
After considering the factors set forth in
18 U.S.C. § 3553, the court imposed a
within-Guidelines sentence of 211 months of
imprisonment on each count, to be served
concurrently, plus a five-year term of
supervised
release
and
a
$200
special
assessment.
U.S.

v.

Harris,

548

F.

App’x

(footnotes omitted).

5 

807,

808-11

(3d

Cir.

2013)

On

direct

appeal,

Harris

challenged

the

trial

court’s

denial of his pretrial motion to suppress evidence seized in his
bedroom on the day of his arrest. Id. at 811. The Third Circuit
found

ample

evidence

that

Harris’s

consent

to

search

was

voluntary. Id.
In the present habeas petition, Harris’s first ground for
relief

is

that

the

“Hobbs

Act

Statute

does

not

reach

non-

economic non-commercial conduct under commerce clause that is
purely intrastate.” (Pet., ECF No. 12 at 4.) In each ground for
relief where Harris challenges a trial court determination or
action, he alleged his appellate counsel was ineffective for not
raising the issue on direct appeal.
For

his

second

ground

for

relief,

Harris

argued,

“Government’s interpretation and application of Hobbs Act under
18

U.S.C.

§

1951(a)

is

invalid

due

to

broad

expansion

of

statute.” (Pet., ECF No. 12 at 5.) Harris’s third ground for
relief

is

ineffective

argue

that

the

assistance

drug

stash

of

counsel

house

stings

for

“failing

were

to

selective

prosecution and enforcement.” (Id.)
In

Ground

established

Four,

jurisdiction

Harris
to

try

argued

“Trial

Petitioner

Court

under

18

never
U.S.C.

1951(a) Hobbs Act due to Petitioner’s conduct not ‘affecting
interstate commerce’ and explained that his lawyer failed to
raise the issue or explore the defense. (Id. at 8.) As his fifth
6 

ground for relief, Harris contends that Riley v. California, 134
S.Ct.

2473

(2014)

applies

retroactively

and

establishes

that

information seized from the search of his phone at the time of
his arrest, without a warrant, should not have been introduced
at his trial. (Id. at 14.) Ground Six is an extension of this
claim. Harris contends counsel failed to object to submission of
a cellphone picture taken from his phone, without a warrant,
purporting to show him and a co-defendant using gang signs. (Id.
at 15.)
Harris argues in Ground Seven that “The Hobbs Act commerce
effect was not proven where Government failed to prove depletion
of any assets on business engaged in interstate commerce.” (Id.
at 16.) In Ground Eight, his final ground for relief, Harris
contends his trial counsel was ineffective for failing to make a
motion

to

suppress

all

evidence

obtained

during

an

alleged

consensual search because his mother did not consent to search
of their home, although her husband consented. (Pet., ECF No. 12
at 18.) Harris requests an evidentiary hearing.
II. STANDARD OF REVIEW
A prisoner in custody pursuant to a federal court judgment
and conviction may move the court that imposed the sentence to
vacate, set aside or correct the sentence, if the sentence was
imposed in violation of the Constitution or laws of the United
States; or if the court was without jurisdiction to impose such
7 

sentence;

or

if

the

sentence

was

in

excess

of

the

maximum

authorized by law, or is otherwise subject to collateral attack.
28

U.S.C.

§

2255(a).

In

considering

a

motion

to

vacate

a

defendant's sentence, “the court must accept the truth of the
movant's factual allegations unless they are clearly frivolous
on the basis of the existing record.” U.S. v. Booth, 432 F.3d
542,

545

(3d

Cir.

2005)

(quoting

Government

of

the

Virgin

Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). “The district
court is required to hold an evidentiary hearing ‘unless the
motion and files and records of the case show conclusively that
the movant is not entitled to relief.’” Id. For the reasons
discussed below, the records of the case conclusively show that
Harris is not entitled to relief, and the Court will not hold an
evidentiary hearing in this matter.
Harris raises constitutional claims based on ineffective
assistance

of

counsel.

An

ineffective

assistance

of

claim has two components:
First,
the
defendant
must
show
that
counsel’s performance was deficient.
This
requires showing that counsel made errors so
serious that counsel was not functioning “as
counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show
that
the
deficient
performance
prejudiced the defense.
This requires
showing
that
counsel’s
errors
were
so
serious as to deprive the defendant of a
fair
trial,
a
trial
whose
result
is
reliable.

8 

counsel

Strickland v. Washington, 466 U.S. 668, 687 (1984).
Furthermore,

the

first

prong

of

the

test

“requires

a

defendant to show ‘that counsel’s representation fell below an
objective standard of reasonableness.’" Lafler v. Cooper, 132
S.Ct. 1376, 1384 (2012) (quoting Hill v. Lockhart, 474 U.S. 52,
57

(1985)).

There

is

“a

strong

presumption

that

counsel's

conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be
considered sound trial strategy’.” Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “The
Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.” Yarborough v.
Gentry, 540 U.S. 1, 8 (2003) (citing Bell v. Cone, 535 U.S. 685,
702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986);
Strickland, 466 U.S. at 689; United States v. Cronic, 466 U.S.
648, 656 (1984)).
The
requires

second
a

prong

defendant

of
to

the
“show

Strickland

test,

prejudice,

that

is

reasonable

there

a

probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694. The “ultimate focus” of the prejudice inquiry
is on the fundamental fairness of the proceeding. Id. at 696. “A
reasonable

probability

is

one
9 

‘sufficient

to

undermine

confidence in the outcome.’” Collins v. Sec. of Pennsylvania
Dept.

of

Corr.,

742

F.3d

528,

547

(3d

Cir.

2014)

(quoting

Strickland, 466 U.S. at 694). “Prejudice is viewed in light of
the totality of the evidence at trial and the testimony at the
collateral review hearing.” Id. (citing Rolan v. Vaugh, 445 F.3d
671,

682

(3d.

Cir.

2006)).

A

court

need

not

address

both

components of the ineffective assistance inquiry. Strickland,
466

U.S.

at

ineffectiveness

697.

“If

claim

on

it
the

is

easier

ground

to

of

dispose

lack

of

of

an

sufficient

prejudice . . . that course should be followed.” Strickland, 466
U.S. at 697.
III. DISCUSSION
A. Grounds One, Two, Four and Seven
In Grounds One, Two, Four and Seven of the petition, Harris
asserted

trial

and/or

appellate

counsel

were

ineffective

by

failing to challenge the jurisdiction of the trial court under
the Hobbs Act. In support of Ground One, Harris stated, “the
trial court erred by allowing fictitious stash house drug stings
to

be

classified

as

18

U.S.C.

§

1951(a)

Hobbs

Act

robbery

affecting interstate or intrastate commerce.” (Pet., ECF No. 12
at

4.)

In

support

of

Ground

Two,

Harris

stated,

“the

broad

expansion of the statute 18 U.S.C. § 1951(a) Hobbs Act to charge
a

robbery

of

fictitious

drug

stash

house

and

drug

dealer’s

exceed the constitutional limits expressed by Congress upon the
10 

statute[‘]s enactment. The Court and Government therefore lack
any jurisdiction over state robbery conduct.” (Id. at 5.)
Relatedly, in support of Ground Four, Harris argued “the
trial

court

erred

by

failing

to

establish

whether

it

had

jurisdiction over state robbery conspiracy whose factual conduct
and legal elements did not establish that such actions violated
any federal offense listed in the United States Code, due to the
failure of the actions to ‘affect any interstate commerce’ which
is the ‘jurisdictional element.’” (Id. at 8.) In support of
Ground

Seven,

Harris

asserted

“depletion

of

assets

findings

cannot be made because the direct nexus to interstate commerce
under the Hobbs Act is nonexistence [sic].” (Id.)
Respondent offered the Declaration of Richard Sparaco, who
was

Harris’s

trial

and

appellate

counsel,

in

opposition

to

Harris’s § 2255 petition. Sparaco declared that he researched
the

issue

of

moving

to

dismiss

the

indictment,

suppressing

evidence or generally challenging the Hobbs Act charge due to
lack of effect on interstate commerce because the stash house
was

fictitious.

concluded

that

(Decl.
such

of

Counsel,

challenges

ECF

No.

would

be

18-2,

¶10.)

frivolous

He
and

communicated this to Harris. (Id.)
Respondent contends there was good reason for counsel to
conclude there was no legal basis for such a challenge. (Brief
of the United States in Opposition to Petitioner’s Petition to
11 

Vacate, Set Aside, or Correct his Sentence Under 28 U.S.C. §
2255 (“Govt’s Brief”), ECF No. 18 at 17-21.) This Court agrees.
“To obtain a conviction under the Hobbs Act, the government mush
show that (1) the defendant committed ‘robbery or extortion’ or
attempted or conspired to do so, and (2) that conduct ‘obstruct
[ed], delay[ed], or affect[ed] commerce or the movement of any
article or commodity in commerce. U.S. v. Walker, 657 F.3d 160,
178-79 (3d Cir. 2011) (quoting 18 U.S.C. § 1951(a)). Under the
Hobbs Act, commerce is defined broadly to include “all commerce
over

which

the

United

States

has

jurisdiction.”

Id.

at

179

(quoting 18 U.S.C. § 1951(b)(3)).
Robbery and extortion are fundamentally economic in nature;
therefore,

the

government

is

not

required

to

prove

“‘a

substantial effect’ on commerce” to show a Hobbs Act violation.
Id. (quoting U.S. v. Urban, 404 F.3d 754, 766 (3d Cir. 2005)
(citing U.S. v. Clausen, 328 F.3d 708, 711 (3d Cir. 2003)).
Congress has the “power to regulate purely local activities that
are

part

of

an

economic

‘class

of

activities’

that

have

a

substantial effect on interstate commerce.” Gonzales v. Raich,
545 U.S. 1, 17 (2005) (citing Perez v. U.S., 402 U.S. 146, 151
(1971); Wickard v. Filburn, 317 U.S. 111, 128-129 (1942)).
In a Hobbs Act prosecution all that is required is proof of
de minimus effect on interstate commerce, and the de minimus
effect

need

only

be

“potential.”
12 

Walker,

657

F.3d

at

180

(citations omitted). In Walker, the court held that attempt to
rob a drug dealer, even if he was a first-time participant in
drug trafficking, implicated the Hobbs Act because such conduct
had

the

“potential”

to

interfere

with

the

sales

of

more

established drug dealers. 657 F.3d 160, 163 (3d Cir. 2011).
“̔Congress’s power to criminalize . . . conduct pursuant to the
Commerce Clause turns on the economic nature of the class of
conduct defined in the statute rather than the economic facts .
. . of a single case.’” Id. at 183, (quoting Unites States v.
Morales-de Jesús, 372 F.3d 6, 18 (1st Cir. 2004) (emphasis in
original)); see U.S. v. Powell, 693 F.3d 398, 403 n. 7 (“In
Walker, we suggested in a footnote that because the defendants
were

‘motivated

by

[the

victim’s]

connection

to

interstate

commerce,’ the Hobbs Act’s jurisdictional nexus was satisfied.
657 F.3d at 182 n. 16.”)
“In cases involving conspiracy . . . ‘federal jurisdiction
[can] be grounded on proof that the conspiracy, if completed,
would affect commerce,” U.S. v. Bonner, 469 F. App’x 119, 129
(quoting U.S. v. Jannotti, 673 F.2d 678, 591 (3d Cir. 1982) (en
banc)). Impossibility is not a defense to conspiracy under the
Hobbs

Act

where

the

effect

on

interstate

commerce

was

“impossible” because the conspiracy was based on a government
sting operation. Jannotti, 673 F.2d at 593-94.

13 

Similarly, the Eleventh Circuit focused on the class of
conduct, rather than the actual effect on commerce, in holding
that the Hobbs Act jurisdictional requirement is met where the
defendants

conspired

to

rob

a

fictitious

stash

house

and

fictitious cocaine traffickers. U.S. v. Taylor, 480 F.3d 1025,
1027 (11th Cir. 2007). “If the cocaine in this case actually
existed, a sufficient interstate nexus would exist to satisfy
the jurisdictional requirement of the Hobbs Act.” Id. The Court
reasoned

that

fictional,

although

“impossibility

the

stash
not

is

house
defense

a

and

cocaine

to

a

were

conspiracy

charge.” Id. (quoting United States v. Rodriguez, 360 F.3d 949,
955-57 (9th Cir. 2004)).
Here,

the

class

of

conduct,

robbing

a

stash

house

of

cocaine for the purpose of resale, has the potential to effect
the interstate drug trade, and impossibility is not a defense.
See U.S. v. Van Pelt, 448 F. App’x 301, 306 (3d Cir. 2011)
(“[a]n impossibility defense is no more successful when directed
to the federal jurisdictional element of the offense”) (citing
Jannotti,

673

F.2d

at

593).

Therefore,

the

jurisdictional

requirement of the Hobbs Act is met.
Harris

also

argued

jurisdiction

was

lacking

because

the

Government cannot show his conduct depleted the assets of a
business engaged in interstate commerce. Although the Government
can

rely

on

the

depletion

of
14 

assets

theory

to

establish

jurisdiction, it is not required to prove such a theory. Walker,
657 F.3d at 183 (quoting Urban, 404 F.3d at 762). Harris’s trial
counsel did not provide ineffective assistance by concluding he
did not have a basis to challenge jurisdiction under the Hobbs
Act. The Court will deny Grounds One, Two, Four and Seven of the
petition.
B. Ground Three
In Ground Three of the petition, Harris alleged his trial
counsel was ineffective by failing to argue the drug stash house
sting

involved

selective

prosecution

and

enforcement

in

a

racially discriminatory manner. (Pet., ECF No. 12 at 6.) Harris
alleged that his counsel knew of this because numerous cases
were

filed

showing

that

throughout

the

minorities

United

were

States

being

“with

racially

documentation

targeted.”

(Id.)

Harris further alleged that his appellate counsel caused the
procedural default of this claim by not raising it on direct
appeal. (Id. at 7.)
Respondent

asserted

that

a

defendant

bears

the

burden,

before he can even obtain discovery on a selective prosecution
claim, of producing “some evidence tending to show the existence
of the essential elements of the defense, discriminatory effect
or discriminatory impact.” (Govt’s Brief, ECF No. 18 at 16,
quoting United States v. Taylor, 686 F.3d 182, 197 (3d Cir.
2012)) (quoting United States v. Hedaithy, 392 F.3d 580, 605 (3d
15 

Cir. 2004)). Respondent points out that Harris was not even the
target

of

the

investigation,

it

was

his

co-conspirators

who

brought him into the meeting with the undercover officer. (Id.
at 16-17.)
“To establish selective prosecution, the defendant ‘must
provide evidence that persons similarly situated have not been
prosecuted’ and that ‘the decision to prosecute was made on the
basis of an unjustifiable standard, such as race, religion, or
some other arbitrary factor.’” Taylor, 686 F.3d at 197 (quoting
United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir. 1989)).
Harris has not alleged an instance where a non-minority who
conspired to rob a fictitious stash house was not prosecuted.
Furthermore, given that Harris was not the original target
of the sting operation, and he does not allege that a nonminority involved in the sting was not prosecuted, he has not
established the threshold for such a claim in this instance.
Harris’s counsel was not ineffective for failing to bring a
factually

unsupported

claim.

See

Gerber

v.

Varano,

Civ.

No.

1:12-CV-00818, 2015 WL 5008934, at *10 (M.D. Pa. Aug. 20, 2015)
(counsel
selective

was

not

ineffective

prosecution

for

claim));

failing

Strube

v.

to

raise

U.S.,

206

meritless
F.Supp.2d

677, 685 (E.D. Pa. 2002) (where petitioner failed to show he was
treated

differently

from

any

other

similarly

situated

individual, argument that counsel was ineffective for failing to
16 

argue selective prosecution was without merit)). Therefore, the
Court will deny the claim in Ground Three.
C.

Grounds Five and Six

Harris challenged counsel’s failure to make a motion to
suppress pictures seized from his cellphone without a warrant.
(Pet., ECF No. 12 at 14.) He also asserted counsel failed to
object to admission of a highly prejudicial and non-probative
photograph, found on his cellphone, purportedly showing Harris
using a gang sign. (Id. at 15.)
First,

Respondent

asserted

“[t]he

photograph

did

not

originate from Harris’ seized phone.” (Govt’s Brief, ECF No. 18
at

14.)

Second,

Respondent

argued

that

even

if

one

assumed

counsel should have objected to admission of the photograph,
which Respondent identified as Government Exhibit 405,1 Harris
cannot establish the prejudice prong of Strickland. (Id. at 12.)
Respondent asserted the photograph was only used to introduce
the co-conspirators and to establish that they knew each other.
(Id. at 13, citing Trial Tr. at 155-57.) Special Agent Sheridan,
who testified about the photograph, did not say anything about
gang

signs

in

the

photograph.

(Id.)

Respondent

argued

that

because there was considerable evidence showing Harris knew the
co-conspirators, admission of the photograph was not an error
sufficient to undermine the outcome of trial. (Id.)

1

Govt’s Brief, Ex. C, ECF No. 18-3.
17 

Even assuming counsel should have objected to admission of
the

photograph,

to

succeed

on

an

ineffective

assistance

of

counsel claim, Harris must show counsel’s error was prejudicial.
True, a juror might think the photograph depicted Harris and
others

using

gang

signs,

even

though

there

was

no

such

testimony. However, “but for” counsel’s failure to object to the
photograph’s admission into evidence, the jury was very likely
to

convict

based

on

the

audio

and

video

evidence

of

the

conspiracy to commit a robbery of a stash house. It is unlikely
that admission of the photograph made much difference to the
jury when confronted with audio and video evidence of the very
conduct alleged to violate the law. See United States v. Harris,
Crim. No. 11-783 (RMB) (D.N.J.), Trial Transcript, ECF Nos. 105107. The outcome of the proceeding was not likely to have been
different

if

counsel

had

objected

to

admission

of

the

photograph, and the Court will deny Grounds Five and Six of the
Petition.
D.

Ground Eight

In Ground Eight, Harris alleged counsel was ineffective by
failing to make a motion to suppress all evidence obtained from
his

home

because

his

mother

did

not

consent

to

the

search.

(Pet., ECF No. 12 at 18.) Respondent contends that counsel in
fact

moved

to

suppress

the

seized

items

bedroom. (Govt’s Brief, ECF No. 18 at 10.)
18 

found

in

Harris’s

The record supports Respondent’s contention that counsel
brought a motion to suppress the evidence obtained from Harris’s
home.

See

United

States

v.

Harris,

Crim.

No.

11-783

(RMB)

(D.N.J. Aug. 31, 2012, Motion to Suppress, ECF No. 69.) There
was a lengthy hearing on the motion on September 19, 2012. (Id.,
ECF No. 79.) Upon review of counsel’s brief and the hearing
transcript, counsel provided effective assistance on the motion
to

suppress,

and

the

Court

will

deny

Ground

Eight

of

the

certificate

of

petition.
E.

Certificate of Appealability

The

Court

must

assess

whether

a

appealability should issue. A litigant may not appeal from a
final order in a proceeding under 28 U.S.C. § 2255 without a
certificate

of

appealability.

28

U.S.C.

§

2253(c)(1)(B).

A

certificate of appealability shall not issue unless there is a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “Where a district court has rejected the
constitutional claims on the merits, the showing requiring to
satisfy

§

demonstrate
court's

2253(c)
that

assessment

is

straightforward:

reasonable
of

the

jurists

The

would

constitutional

petitioner

find
claims

the

district

debatable

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

19 

must

or

Based on the discussion above, reasonable jurists would not
find

it

debatable

that

defense

counsel

provided

ineffective

assistance of counsel that prejudiced the defense.
IV. CONCLUSION
For the foregoing reasons, the motion to vacate, set aside,
or correct the sentence (ECF No. 12) is DENIED, and the Court
SHALL NOT ISSUE a certificate of appealability. An appropriate
Order shall follow.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: March 3, 2016

20