Harrison v. USA
Filing
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MEMORANDUM DECISION and ORDER Denying and Dismissing with Prejudice 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Dale A. Kimball on 2/5/2016. (eat)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
WILLIAM HARRISON,
Petitioner,
vs.
MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT
SENTENCE
UNITED STATES OF AMERICA,
Case No. 2:13-CV-222-DAK
Respondent.
The Honorable Dale A. Kimball
This matter is before the court on Petitioner William Harrison’s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255. On January 4, 2007, Mr. Harrison and a
co-defendant were named in a six-count indictment charging, inter alia, armed bank robbery, in
violation of 18 U.S.C. § 2113, and discharging a firearm during a crime of violence, in violation of
18 U.S.C. § 924(c). On March 24, 2009, Mr. Harrison pleaded guilty to two counts of discharging
a firearm during a crime of violence, in violation of U.S.C. § 924(c). The other counts against him
were ultimately dismissed.
Under the terms of a signed “Statement By Defendant in Advance of Plea of Guilty,” Mr.
Harrison agreed to plead guilty to Counts IV and V of the Indictment (two of the § 924(c) counts);
to accept responsibility for all three armed bank robberies, including restitution to the victims; and
to waive his appellate and collateral review rights.
In exchange for his plea, the Government agreed to recommend a sentence of the minimum
mandatory 10 years incarceration for Count IV and 25 years incarceration for Count V, for a total
of 35 years. The court accepted the plea, and, on June 3, 2009, sentenced Mr. Harrison to
thirty-five years’ imprisonment. Mr. Harrison did not file a direct appeal.
On March 1, 2013, Mr. Harrison placed in the prison mailing system a Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Mr. Harrison’s motion claims that he
received ineffective assistance of counsel because his counsel failed to perform sufficient pre-trial
investigation and failed to provide Mr. Harrison with an understanding of the law in relation to
armed bank robbery. Mr. Harrison claims that he either would have received a more advantageous
plea or would have gone to trial if his assistance of counsel were effective.
As an initial matter, Mr. Harrison’s waiver of collateral review rights is valid and
enforceable, but an exception to the waiver exists when the petitioner is claiming ineffective
assistance of counsel with respect to entering the plea or negotiating the agreement. The Tenth
Circuit has held that waivers of the right to collaterally attack a sentence are valid and enforceable.
United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001) (“[A] waiver of collateral
attack rights brought under § 2255 is generally enforceable where the waiver is expressly stated in
the plea agreement and where both the plea and the waiver were knowingly and voluntarily
made.”). But there is an exception to the rule for challenges claiming ineffective assistance of
counsel with respect to entering the plea or negotiating the agreement. Cockerham, 237 F.3d at
1183 (“[A] waiver may not be used . . . to deny review of a claim that the agreement was entered
into with ineffective assistance of counsel.” (citation omitted)).
Even though Mr. Harrison’s petition is not barred by his waiver of collateral review rights,
his petition is barred by the statute of limitations and fails on the merits. “A district court is
authorized to modify a Defendant's sentence only in specified instances where Congress has
expressly granted the court jurisdiction to do so.” United States v. Blackwell, 81 F.3d 945, 947
(10th Cir. 1996). Under 28 U.S.C. § 2255, a prisoner in custody can move the court to vacate, set
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aside, or correct a sentence if the sentence was unconstitutional, illegal, in excess of the maximum
authorized by law, or otherwise subject to collateral attack. A one-year statute of limitation applies
to motions brought under § 2255.
The limitation period shall run from the latest of (1) the date on which the judgment of
conviction becomes final; (2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution or laws of the United States
is removed, if the movant was prevented from making a motion by such governmental
action; (3) the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or (4) the date on which the facts
supporting the claim or claims presented could have been discovered through the exercise
of due diligence.
28 U.S.C. § 2255(f).
The Judgment in Mr. Harrison’s underlying criminal case was entered on June 3, 2009. Mr.
Harrison had 30 days to file an appeal, which he chose not to do. Therefore, the Judgment became
final on July 4, 2009, and the one-year statute of limitations began to run. Absent an event
restarting the one-year period, Mr. Harrison would be time barred from filing a petition after July
4, 2010, which would include his § 2255 petition, filed March 1, 2013.
Mr. Harrison argues that two Supreme Court cases asserted a new right that should have
retroactive implications and that, therefore, restart the one-year period per 28 U.S.C. § 2255(f)(3).
Mr. Harrison references Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, 132 S. Ct.
1376 (2012) as cases that articulated a new standard for showing prejudice related to ineffective
assistance of counsel.
In order for the one-year period to restart under 28 U.S.C. § 2255(f)(3), the Supreme Court
must newly recognize a right and make the right retroactively applicable to cases on collateral
review. The right at issue in the Frye and the Lafler cases is the Sixth Amendment right to effective
assistance of counsel during plea negotiations. That right has long been recognized by the Supreme
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Court. Although the Frye and Lafler cases clarify the extent of the right and the standard for
applying the right, they do not newly recognize the existence of the right. Even if the cases did
newly recognize the right, neither case expressly applies the right retroactively to cases on
collateral review. Therefore, Mr. Harrison failed to demonstrate that the statute of limitations for
his § 2255 claims should begin to run from a date other than the date the Judgment in his
underlying criminal case became final. Accordingly, Mr. Harrison’s § 2255 petition is time barred.
Even if this court were to consider Mr. Harrison’s petition on its merits, the petition fails.
To establish a claim for ineffective assistance of counsel, a petitioner must show: “(1) his
counsel’s performance was constitutionally deficient, and (2) counsel’s deficient performance was
prejudicial.” United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995); United States v. Glover, 97
F.3d 1345, 1349 (10th Cir. 1996) (applying standard to sentencing proceedings and plea hearings).
Petitioner has a burden to demonstrate that his attorney’s performance was unreasonable under
prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).
Mr. Harrison’s primary argument for ineffective assistance of counsel is that his counsel
misunderstood and failed to inform him of the law in relation to armed bank robbery by force or
violence. Mr. Harrison cites to Simpson v. United States, 435 U.S. 6 (1978) and to related cases to
argue that it is improper to enhance the punishment for armed bank robbery under both 18 U.S.C.
§ 2113(d) and 18 U.S.C. § 942(c). Although Mr. Harrison correctly states the holding of the
Simpson case, Mr. Harrison fails to recognize that “[s]ix years after Simpson, Congress amended §
942(c) to expressly provide that it applied to felonious crimes of violence including those which
imposed enhanced punishments if committed by the use of a deadly weapon.” U.S. v. Shavers, 820
F.2d 1375, 1377-78 (4th Cir. 1987). See 18 U.S.C. § 942(c) (clarifying that the statute applies to “a
crime of violence or drug trafficking crime that provides for an enhanced punishment if committed
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by the use of a deadly or dangerous weapon or device”). Therefore, Mr. Harrison’s petition based
on ineffective assistance of counsel fails because Mr. Harrison failed to show that his counsel
incorrectly understood or informed him of the applicable law.
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United States
District Courts, “[t]he district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Under 28 U.S.C. § 2253, a certificate of appealability "may
issue . . . only if the applicant has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); United States v. Silva, 430 F.3d 1096, 1100 (10th Cir.2005)
(quoting 28 U.S.C. § 2253(c)(2)). The court finds that “reasonable jurists could not debate whether
the petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). The court concludes that Mr. Harrison has not made a substantial showing of the denial of
a constitutional right and, therefore, declines to issue a Certificate of Appealability. If Mr.
Harrison wishes to appeal the court’s ruling on his motion, he must seek a certificate from the court
of appeals under Federal Rule of Appellate Procedure 22.
For the reasons above, Mr. Harrison’s motion under 28 U.S.C. § 2255 is DENIED and
DISMISSED WITH PREJUDICE because it is barred by the statute of limitations and lacks merit.
DATED this 5th day of February, 2016.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
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