Harris v. United States of America

Filing 2

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 2/28/2018. Defendant's Request for Correction of PSR (dkt. no. 162 in 06-Cr-164) construed as motion to vacate, set aside or correct sentence under 28 USC §2255. Clerk of Court to open this civil 28 USC §2255 case with docket no. 162. 1 Petitioner's second or successive MOTION to Vacate, Set Aside or Correct Sentence (2255) DISMISSED for lack of jurisdiction. (cc: all counsel, via mail to David W. Harris)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,
Plaintiff,
v.

Case Nos.

06-Cr-164-pp
18-cv-301-pp

DAVID W. HARRIS,
Defendant.

ORDER CONSTRUING THE DEFENDANT’S LETTER REQUEST AS A
MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28
U.S.C. §2255 (DKT. NO. 162), DIRECTING CLERK OF COURT TO OPEN A
SEPARATE CIVIL 28 U.S.C. §2255 CASE WITH THE MOTION AND
DISMISSING AS A SECOND OR SUCCESSIVE §2255 MOTION

The defendant has written a letter asking the court to correct his PSR,
and to appoint him counsel to file a Johnson claim. Dkt. No. 162. The
defendant argues that his Presentence Investigation Report is wrong and that
his 120-month mandatory minimum sentence was based on a now-invalid
conviction.
Judge Rudolph T. Randa sentenced the defendant nine and a half years
ago, on November 21, 2008. Dkt. No. 112. The Seventh Circuit affirmed the
conviction and sentence on February 3, 2010. Dkt. No. 132. Since then, the
defendant has filed multiple §2255 motions and motions to reconsider,
resulting in seven separate lawsuits raising the same claim. Harris v. United
States, Case Nos. 10-cv-445 (E.D. Wis.); 10-cv-1096 (E.D. Wis.); 11-cv-203
(E.D. Wis.); 11-cv-269 (E.D. Wis.); 11-cv-947 (E.D. Wis.); 13-cv-916 (E.D. Wis.);
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16-cv-409 (E.D. Wis.). In each case, the defendant argued that his sentence
had been miscalculated because his prior conviction in State of Arkansas v.
David Wayne Harris, Case No. 02-CR-704 had been sealed or dismissed.
Judge Randa denied the defendant’s first §2255 motion, finding that
even if the defendant was correct in arguing that his Arkansas conviction was
not valid, he had second drug conviction which also triggered the mandatory
minimum. Harris v. United States, 10-cv-445-RTR at Dkt. No. 12 (E.D. Wis.).
When the defendant filed the second motion, Judge Randa determined that he
lacked jurisdiction to rule on it because the defendant had not applied for
permission to file a second or successive motion attacking the same conviction
and sentence as the first motion had attacked. Harris v. United States, 11-cv269 at Dkt. No. 2 (E.D. Wis.). The Seventh Circuit Court of Appeals affirmed,
and denied the defendant’s requests for a certificate of appealability. Id. at Dkt.
No. 17. Judge Randa made the same determination in the other motions the
defendant filed. The defendant’s most recent letter is an attempt to circumvent
the prior orders of the district court; the defendant knows he must ask the
Seventh Circuit’s permission to file a successive petition.
I.

Procedural History
On August 19, 2008, a jury returned a guilty verdict as to count two of

the superseding indictment charging the defendant with possession with intent
to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§841(a)(1)
and (b)(1)(B). United States v. Harris, Case No. 06-cr-164, Dkt. No. 107. Judge
Randa sentenced the defendant to a 120-month mandatory minimum
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sentence, which both parties agreed was a sufficient sentence. Id. at Dkt. No.
111. The defendant filed a direct appeal, and the Seventh Circuit Court of
Appeals affirmed his conviction. Id. at Dkt. No. 132; United States v. Harris,
585 F.3d 394 (7th Cir. 2009).
Three months later, the defendant filed a motion to vacate under 28
U.S.C. §2255, arguing that (1) he was entitled to resentencing because an
Arkansas Circuit Court had issued an order of nolle prosequi with respect to his
2003 conviction, and (2) his counsel had been ineffective during the
suppression hearing in failing to argue that a traffic citation was a mistake of
law. Dkt. No. 134; see also Harris v. United States, Case No. 10-cv-445 (E.D.
Wis.). Judge Randa denied the motion, in part, because while the 120-month
mandatory minimum was triggered by a prior drug conviction, the Arkansas
conviction was not the defendant’s only prior drug conviction. Case No. 06-CR164, Dkt No. 97; Case No. 10-cv-445, Dkt. No. 12 at 1. Even if the defendant
had been correct as to the Arkansas conviction, Judge Randa found the other
conviction sufficient to trigger the mandatory minimum. Id. at 2. The Seventh
Circuit denied the defendant’s request for a certificate of appealability, finding
no substantial showing of a denial of a constitutional right. Case No. 10-cv445, Dkt. No. 30.
The defendant filed six more motions seeking reconsideration and
challenging his sentence in this district. Case. Nos. 10-cv-1096, 11-cv-203, 11cv-269, 11-cv-947, 13-cv-916, 16-cv-409. Judge Randa denied each of these
motions as a second or successive petition requiring leave of the Seventh
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Circuit. When dismissing Case No. 13-cv-916, Judge Randa warned the
defendant that the court would sanction the defendant under Rule 11 of the
Federal Rules of Civil Procedure if he filed another successive motion without
seeking the Seventh Circuit’s permission. Case No. 13-cv-916, Dkt. No. 2.
Despite that warning, on December 21, 2015, the defendant filed a
motion for leave to file a successive §2255 with the district court. Case No. 06CR-164, Dkt. No. 147. Judge Randa again denied the motion for lack of
jurisdiction, as well as the defendant’s motion for recusal. Dkt. No. 150. Judge
Randa denied a subsequent motion for reconsideration, clarifying that “if
Harris is seeking leave to file a successive motion under 28 U.S.C. §2255, this
court lacks jurisdiction to entertain such a motion. If, instead, Harris is
actually filing a substantive §2255 motion, the court lacks jurisdiction because
such a motion would be second or successive. Either way, no jurisdiction.”
Dkt. No. 155.
Within months, the defendant filed another motion to vacate under
§2255, claiming, among other things, actual innocence. Case No. 16-cv-409,
Dkt. No. 1. Judge Randa dismissed that case three weeks later for lack of
subject matter jurisdiction. Id., at Dkt. No. 3. The Seventh Circuit held that the
district court’s dismissal was proper because the defendant had not sought
permission from the Seventh Circuit to file a successive motion, and warned
that future repetitive filings would result in sanctions. Id. at Dkt. No. 12.
The clerk of court reassigned the underlying criminal case to this court
on April 10, 2017, and the court granted the defendant’s motion to travel
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outside the United States. Case No. 06-cr-164, Dkt. No. 160. On June 1, 2017,
the court transferred jurisdiction over the defendant’s supervised release to the
Eastern District of Arkansas. Id. at Dkt. No. 161. The defendant returned to
this court two months later with the current request for correction of his PSR
and the request that the court appoint counsel to help him pursue yet another
§2255 motion. Id. at Dkt. No. 162.
II.

Second and Successive Petitions
The court construes the defendant’s letter as a second or successive

§2255 motion that must be certified “as provided by 28 U.S.C. §2244 by a
panel of the appropriate court of appeals” before he may proceed. 28 U.S.C.
§2255(h). In this motion, the defendant makes the same arguments he made
repeatedly to Judge Randa—that his Arkansas conviction is no longer valid,
that Judge Randa used that conviction as “his sole, single justification” for
imposing the mandatory minimum, and that the PSR should be changed and
the court should appoint him a lawyer. Dkt. No. 162. The defendant does not
specifically state that he wants the court to vacate his sentence, but he asks
that the court correct the PSR, and he implies (as he has directly argued
several times before) that because the Arkansas conviction no longer is valid,
the 120-month sentence Judge Randa imposed also was invalid. Regardless of
what words he has or has not used, the defendant is asking the court to vacate
or correct his sentence.
Section 2244(b)(3)(A) says that “[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant
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shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” If the appropriate court of appeals
has not given the district court that authorization, “the district court lacks
jurisdiction over the petition.” Kramer v. United States, 797 F.3d 493, 498 (7th
Cir. 2015). The defendant has not sought leave from the Seventh Circuit to file
this petition, even though he has been told repeatedly that he must do so. That
means this court does not have jurisdiction over this motion.
This court will construe the defendant’s motion as what it is—a
successive §2255 motion. It will direct the clerk’s office to open a civil case
using this motion, and will dismiss the case for lack of jurisdiction. The court
reminds the defendant that when it denied a certificate of appealability in his
last effort to attack his sentence, the Seventh Circuit warned him that if he
continued to file motions, it would impose sanctions.
III.

Conclusion
The court CONSTRUES the petitioner’s letter request as a successive

motion to vacate, set aside or correct his sentence under 28 U.S.C. §2255. Dkt.
No. 162.
The court DIRECTS the clerk’s office to open a separate civil 28 U.S.C.

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§2255 case with this motion (dkt. no. 162), and ORDERS that that case is
DISMISSED for lack of jurisdiction.
Dated in Milwaukee, Wisconsin this 28th day of February, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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