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United States v. Harris

United States District Court, E.D. Michigan, Southern Division

March 22, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
ROBBY NAKIA HARRIS, Defendant-Petitioner. Civil No. 15-14290

          ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE [#54]; ORDER DISMISSING CIVIL CASE NO. 15-14290; and ORDER DENYING CERTIFICATE OF APPEALABILITY

          Denise Page Hood Chief, U.S. District Court

         I. BACKGROUND

         On October 31, 2013, a jury found Defendant Robby Nakia Harris (“Harris”) guilty on one count of Mailing Threatening Communications in violation of 18 U.S.C. § 876(c) for mailing a threatening letter to United States Congresswoman Candice Miller (“Miller”). (Doc # 35) Harris was sentenced to a term of 30 months of imprisonment, followed by a term of 1 year of supervised release. (Doc # 41) Harris filed a Notice of Appeal on March 10, 2014. (Doc # 42) On May 13, 2015, the Sixth Circuit issued an Opinion affirming Harris' conviction and sentence. (Doc # 51) The Sixth Circuit issued a Mandate on June 4, 2015. (Doc # 52) Harris did not appeal to the Supreme Court. On December 9, 2015, Harris filed the instant Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel and prosecutorial misconduct. (Doc # 54) Harris filed a Supplemental Brief on April 25, 2016. (Doc # 60) The Government filed a Response on July 11, 2016. (Doc # 64)

         II. ANALYSIS

         A. Standard of Review

         Section 2255 authorizes a federal prisoner to move the district court to vacate a sentence. 28 U.S.C. § 2255(a). Motions brought under Section 2255 are subject to a one-year limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996, generally running from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2253(f)(1); Dunlap v. United States, 250 F.3d 1001, 1004-05 (6th Cir. 2001). As an initial matter, the Court notes that Harris' Motion was timely filed well within the limitations period.

         Under the Sixth Amendment, a defendant has a right to “have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. A defendant has a right to “reasonably effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court articulated a two-prong test to show ineffective assistance of counsel:

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 the “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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown of the adversary process that renders the result unreliable.

Id. “There is a strong presumption that legal counsel is competent. United States v. Osterbrock, 891 F.2d 1216, 1220 (6th Cir. 1989). In addition, a “reviewing court must give a highly deferential scrutiny to counsel's performance.” Ward v. United States, 995 F.2d 1317, 1321 (6th Cir. 1993). “The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The defendant bears the burden of showing that counsel was so deficient and that prejudice resulted from counsel's errors. Id. at 686-87.

         B. Competence to Stand Trial

         Harris first argues that Defense Counsel was ineffective because he failed to obtain a second opinion regarding Harris' competence to stand trial, and because he failed to properly appeal the decision of this Court that Harris was competent to stand trial. Harris argues that, because of his extensive psychiatric history and the finding that he had been incompetent ten years earlier, the likelihood is high that another expert would have determined that he was incompetent in 2013-in which case he would not have had to stand trial and would have avoided the risk of a conviction. Harris further argues that a second opinion might have supported the argument for downward departure at sentencing and might have resulted in a lower sentence.

         The Government argues that Harris has not presented clear and convincing evidence to rebut this Court's factual finding that Harris was competent to stand trial. The Government argues that Harris' arguments are purely speculative, and that there is no evidence that a second evaluation would have contained different results or would have justified a further reduction in Harris' sentence.

         Prior to trial, Defense Counsel raised the issue of Harris' competence to stand trial, and Magistrate Judge Steven Whalen ordered a competency evaluation. (Doc # 9) The evaluation was conducted in February and March 2013 by two psychologists employed by the Federal Bureau of Prisons. The evaluation report submitted to the court concluded that Harris presented with a mental disease, but that he did have the capacity to assist legal counsel in his defense, and could rationally make decisions regarding legal strategy. (Doc # 22-1) Magistrate Judge Whalen found Harris to be presently suffering from psychotic disorder, NOS; borderline intellectual functioning; and borderline personality disorder. (Doc # 13) Notwithstanding his diagnoses, Magistrate Judge Whalen found Harris to be competent to stand trial after reviewing the evaluation report and conducting a competency hearing on April 24, 2013. Id.

         Defense Counsel appealed, and this Court held a hearing on October 23, 2013. During the hearing, the Court inquired whether the parties had considered obtaining a second evaluation. (Doc # 45, Pg ID 197, 205) Both parties indicated that they would have no objection but also expressed concern about continuing to delay the trial because Harris had already been in custody for a year. Defense Counsel also acknowledged that if the Court were to find Harris incompetent, the Court would commit Harris to the custody of the Attorney General, in accordance with 18 U.S.C. § 4241. Id. at 198-200. Defense Counsel acknowledged that Harris would then be hospitalized in a suitable facility for a reasonable period of time not to exceed four months as necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward, or for the pending charges to be disposed of according to law. Id. at 200-01. The Court indicated that it would review the curriculum vitae of the initial evaluator and would then make a determination of whether a second evaluation was needed. Id. at 208-09. On October 28, 2013, this Court entered an Order finding Harris competent to stand trial and affirming Magistrate Judge Whalen's Order. (Doc # 30)

         After the trial, Defense Counsel proffered the initial evaluation report at the sentencing hearing and argued for a reduced sentence based upon Harris' mental competency. The Court sentenced Harris to the lowest end of the applicable sentencing guideline range.

         After reviewing the parties' arguments, briefs, and the record, the Court concludes that Defense Counsel's performance with regards to the issue of mental competency was reasonable. Harris presents no evidence that a second evaluation in 2013 would have found him incompetent or would have justified a further reduction in Harris' sentence. Harris points only to his “extensive psychiatric history” and a previous finding of incompetence preceding this Court's finding by a decade. These were facts that Magistrate Judge Whalen and this Court already considered when making the determination that Harris was competent to stand trial in 2013. Defense Counsel did appeal Magistrate Judge Whalen's initial decision, and this Court finds that Defense Counsel then made a strategic decision not to further appeal the decision of this Court and proceed to trial, as well as to then rely on the initial evaluation report at sentencing.

         Under these facts, the Court concludes that Harris has not met his burden of showing that Defense Counsel's performance was constitutionally deficient, or that there is a reasonable probability that, but for Defense Counsel's ...


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