United States v. Harris

          MEMORANDUM AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 (DOC. 30) AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is a criminal case. Defendant/Petitioner, Dulante Harris, proceeding pro se, has filed a motion vacate his sentence under 28 U.S.C. § 2255 contending that his conviction for car jacking does not qualify as a predicate “crime of violence” to support his conviction under 18 U.S.C. § 924(c) after the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Harris also argues that his counsel was ineffective for failing to ask for a stay given the Supreme Court's decision in Dimaya and that his plea agreement is void. The government contends that the motion lacks merit. For the reasons that follow, the motion will be denied for lack of merit.^[1]

         II. Background

         In the evening in July 2017 Harris and a second gunman ambushed two teenaged girls who were sitting in a 2017 Dodge Charger. Harris pointed a gun at the young women and ordered them out of the car. The victims exited the vehicle out of fear for their lives. The assailants entered the Charger and fled the scene. The victim driver contacted her father and then reported the carjacking to the police. The next day, law enforcement observed Harris driving the carjacked Dodge Charger. Harris pulled the car into the driveway of a vacant house and then walked to a nearby residence. The police approached Harris as he sat on the front porch of that home. Harris ran but was found hiding under clothing in a basement closet. Harris was arrested and the closet was searched. In the closet, the police found the key fob and vehicle registration for the carjacked Charger. Police also located a semi-automatic handgun inside the home. Harris was subsequently picked out of a lineup by the victim driver.

         Harris was charged with carjacking and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. §§ 2119 and 924(c). Harris plead guilty plea as charged under a Rule 11 Agreement. Harris was sentenced to 30 days for the carjacking followed by eighty-four (84) months imprisonment for the use of the firearm. Harris did not appeal. Harris then filed the instant motion under § 2255.

         III. Legal Standards

         28 U.S.C. § 2255 provides:

A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence imposed was in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.

28 U.S.C. § 2255(a). To prevail on a § 2255 motion, “a petitioner must demonstrate the existence of an error of constitutional magnitude which has a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). A movant can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999).

         As “[§] 2255 is not a substitute for a direct appeal, ” Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)), “a prisoner must clear a significantly higher hurdle than would exist on direct appeal” to merit collateral relief, Frady, 456 U.S. at 166. Though non-constitutional errors are generally outside the scope of § 2255 relief, see United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000), a petitioner can prevail on a § 2255 motion alleging non-constitutional error “by establish[ing] a ‘fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process,' ” Watson, 165 F.3d at 488 (internal quotation marks omitted) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)). Accordingly, alleged sentencing errors, including the proper application of the guidelines, “does not warrant collateral relief under § 2255 absent a complete miscarriage of justice.” Jones, 178 F.3d at 796.

         Harris has claimed ineffective assistance of counsel which may be raised for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 508-09 (2003). To establish ineffective assistance of counsel under the Sixth Amendment, Harris must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Harris must first show that his counsel's performance was deficient, which “requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. A court must afford defense attorneys “wide latitude” and, in analyzing their conduct under the Sixth Amendment, must make “every effort” to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. Defense counsel are entitled to a “strong presumption” that they made “all significant decisions in the exercise of reasonable professional judgment.” Cullen v. Pinholster, 131 S.Ct. 1388, 1407 (2011).

         If Harris succeeds in proving deficient performance, he must next show that the deficient performance was prejudicial. Prejudice requires more than “some conceivable effect on the outcome of the proceeding, ” Harris must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the ...