United States District Court, E.D. Michigan, Southern Division
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
Page Hood Chief, U.S. District Court
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)
Standard of Review
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.
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.
Competence to Stand Trial
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.
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.
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.
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)
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.
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.
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