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United States v. Harper

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

February 8, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
D-4 FRANK HARPER, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT HIS SENTENCE UNDER 18 U.S.C. § 2255 [DOCS. 256 AND 282]

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         Following a jury trial, defendant Frank Harper was found guilty of conspiracy (count one), three separate carjackings (counts six, eight, and ten) and three corresponding instances of using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (counts seven, nine and eleven). The court sentenced Harper to 60 months on count one, 97 months each on counts six, eight and ten (concurrent with one another and with count one), 60 consecutive months on count seven, 300 consecutive months on count nine, and 300 consecutive months on count eleven.

         Frank Harper appealed his convictions and sentence. On March 3, 2016, the Sixth Circuit Court of Appeals denied his appeal and affirmed his convictions and sentence. On August 2, 2016, Harper filed a petition for writ of certiorari with the Supreme Court. The Supreme Court denied his petition on January 11, 2017.

         On June 21, 2016, Harper filed his motion in this court seeking to vacate his convictions and sentence. In his pro se motion, Harper challenges his 18 U.S.C. § 924(c) convictions based on Johnson v. United States, 135 S.Ct. 2551 (2015). The court subsequently appointed counsel to represent Harper. On August 16, 2017 counsel filed an amended motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, adding four grounds for relief in addition to the arguments made by Harper under Johnson.

         The following issues are before the court:

         Ground One: Pursuant to Johnson, whether carjacking is a crime of violence and thus is a predicate offense under § 924(c), and whether § 924(c)'s residual clause is unconstitutionally vague.

         Ground Two: Whether Harper should be resentenced based on Dean v. United States due to ineffective assistance of appellate counsel, or whether Dean applies retroactively on collateral review.

         Ground Three: Whether Harper received ineffective assistance of appellate counsel for failure to challenge the denial of his motion for separate trial under Bruton v. United States.

         Ground Four: Whether Harper received ineffective assistance of trial and appellate counsel for failure to challenge certain jury instructions.

         Ground Five: Whether Harper received ineffective assistance of appellate counsel for failure to raise a sentencing issue as to how second or subsequent § 924(c) sentences are to be calculated under Alleyne v. United States.

         I. Carjacking is a Crime of Violence

         Harper asserts that his three convictions under 18 U.S.C. § 924(c) should be vacated under the holding of Johnson v. United States, which held that the residual clause of a different statute, the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was unconstitutionally vague. Harper acknowledges that the Sixth Circuit has found that the residual clause in § 924(c)(3)(B), while similar to that in the ACCA, was sufficiently different such that it was not unconstitutionally vague based on the rule announced by the Supreme Court in Johnson. See United States v. Taylor, 814 F.3d 340, 375-79 (6th Cir. 2016). Harper states, through counsel, that while he concedes the issue at this point, he wishes to preserve the issue for further appellate review.

         For the reasons argued by the government and conceded by defendant, Johnson does not provide a ground for relief under § 2255.

         II. Resentencing Under Dea ...


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