Opinion
99-CR-51(7)(JMR/FLN), 02-CV-982(JMR)
September 15, 2003
ORDER
Tracy Schondell Harris moves the Court to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. For the following reasons, Harris's motion is denied.
I. Background
On December 13, 1999, Harris pleaded guilty to Count 1 of a Third Superseding Indictment charging him with conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. The plea agreement predicted a guideline range of 135-168 months based on a total offense level of 30 and a criminal history category of IV.
The Presentence Report, however, calculated a sentencing range of 292-365 months based on Harris's classification as a career offender due to a prior federal drug conviction and state conviction for shooting at an occupied motor vehicle. Harris moved to withdraw his guilty plea because of this higher sentencing range. The motion was denied at the sentencing hearing on April 28, 2000.
Nonetheless, the Court departed downward pursuant to Guideline Section 4A1.3 because of overstated criminal history. The Court imposed a sentence of 228 months imprisonment and 5 years supervised release, as well as a consecutive 13-month sentence for the revocation of supervised release.
Harris appealed the question of whether he was properly classified as a career offender. The Eighth Circuit Court of Appeals rejected his arguments and affirmed his sentence. See United States v. Harris, 2001 WL 327716 (8th Cir. 2001) (unpublished).
Harris has now filed a § 2255 motion raising numerous claims, and another motion asking the Court to consider affidavits in support thereof. Harris has also filed a motion for an extension of time within which to respond to the government's opposition to the § 2255 petition. The Court granted this motion, but Harris has not filed a response.
II. Discussion A. Harris's Guilty Plea
Harris first claims the Court should have granted his request to withdraw his guilty plea at the sentencing hearing. Because Harris failed to raise this claim on direct appeal, it is procedurally barred, unless he can demonstrate both cause and prejudice to excuse his failure to do so. Ford v. United States, 983 F.2d 897, 898-99 (8th Cir. 1993). Harris demonstrates neither. He does not point to any reason for his failure to appeal this issue, nor does he show prejudice because his misapprehension regarding the Guidelines is not a fair and just reason for withdrawing the guilty plea. See United States v. Burney, 75 F.3d 442, 445 (8th Cir. 1996) (defendant's misapprehension of application of Guidelines is not fair and just reason so long as defendant was told range of potential punishment and that Guidelines would be applied). Moreover, the plea agreement warned Harris that the Guidelines application could be different than that predicted, and that he would not be able to withdraw his guilty plea in the event the Guidelines were different.
Harris also claims his guilty plea was not knowing and voluntary. He rests this claim on the following two arguments: the fact that the penalty was higher than he expected, and the fact that the Court warned him at the time of sentencing, that if he was allowed to withdraw his plea and was found guilty at trial, he could face a sentence of life in prison.
Further, the plea agreement warned Harris he faced a maximum life sentence, and the Court informed him of the maximum penalties he faced at the change of plea hearing. With regard to the second argument, the Court's warning that it would have no problem sentencing Harris to life in prison could not in any way have affected the voluntariness of his guilty plea, because it was made at the time of sentencing, not at the plea hearing.
B. Apprendi
Harris's next claim is based on Apprendi v. New Jersey, 530 U.S. 466 (2000). He complains the drug quantity for which he was held accountable was not found beyond a reasonable doubt nor found by a jury. Apprendi holds that any fact, other than a prior conviction, which increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. See generally Apprendi, 530 U.S. 466.For several reasons, Apprendi does not apply here. The United States Supreme Court found in Teaque v. Lane, 489 U.S. 288, 311 (1989), that only "watershed" rules of criminal procedure apply retroactively to cases on collateral review, and the Eighth Circuit has concluded that Apprendi is not a "watershed" rule, United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) ("[W]e hold today that Apprendi is not of watershed magnitude and that Teaque bars petitioners from raising Apprendi claims on collateral review."). Therefore, because Harris was sentenced before this decision, Apprendi does not apply to his sentencing on collateral review.
Apprendi also does not apply, because Harris pleaded guilty and admitted to the drug quantity on which his sentence was based, rather than being convicted at trial. See United States v. McIntosh, 236 F.3d 968, 975 (8th Cir. 2001), see also United States v. Kempis-Bonola, 287 F.3d 699, 702 n. 3 (8th Cir. 2002). He admitted in the plea agreement that he distributed and caused to be distributed in excess of 50 grams of cocaine base. His sentence of 228 months imprisonment does not exceed the 20-year (240-month) statutory maximum without reference to drug quantity under the statute, so there can be no Apprendi violation. See United States v. Aquavo-Delqado, 220 F.3d 926, 933-34 (8th Cir. 2000).
Finally, even if Apprendi did apply, Harris's motion is procedurally barred because he did not raise this claim on direct appeal. A claim not raised on direct appeal is procedurally defaulted on collateral review unless (1) a petitioner demonstrates cause for the default and actual prejudice or (2) actual innocence. See, e.g., Moss, 252 F.3d at 1001. Petitioner fails to do either.
C. Sufficiency of Evidence
The Court considers Harris's next claim to be a sufficiency of the evidence challenge. Harris argues that the government did not prove he was a part of the overall drug trafficking conspiracy, and contends that the evidence does not support a conspiracy to distribute cocaine base. But Harris cannot challenge the sufficiency of the evidence against him in a § 2255 petition. See United States v. Gaus, 751 F.2d 1506, 1507 (8th Cir. 1985) (per curiam); United States v. Johnson, 582 F.2d 1186, 1188 (8th Cir. 1978) (per curiam).
Even if he could, this claim would fail, because his own testimony from the plea hearing provides a sufficient factual basis for his conviction. Although Harris has submitted affidavits from two of his co-defendants, they merely contain conclusory statements that he was not part of the charged conspiracy; they are insufficient, because they contradict his sworn testimony. See Vovtik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985).
D. Career Offender Status
Harris's next claim again challenges his classification as a career offender. This issue was raised on direct appeal, but the appellate court affirmed Harris's sentence. Therefore, the issue cannot be re-litigated through collateral review. See United States v. Holtzen, 718 F.2d 876, 878 (8th Cir. 1983) (per curiam).
Moreover, even if this issue could be re-litigated, Harris would lose because he is properly classified as a career offender. He argues that his conviction for shooting at an occupied motor vehicle should not be a predicate offense for career offender status, because under California law it allegedly became a misdemeanor, rather than a felony, after he served his four-year sentence. The Guidelines specify otherwise:
"Prior felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony. . . . A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted. . . ."
U.S.S.G. § 4B1.2 cmmt. 1. Thus, this offense makes Harris a career offender, regardless of its classification under California law.
E. Consecutive Sentences
Harris's final two claims for relief relate to the fact that the sentence for his supervised release violation was imposed consecutive to the sentence for his guilty plea to the drug trafficking offense in this case. Again, this claim is procedurally barred because Harris failed to raise it on direct appeal. See Ford v. United States, 983 F.2d 897, 898-99 (8th Cir. 1993).In any event, though, this claim fails on the merits, because of the following law:
Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release.
U.S.S.G. § 7B1.3(f) (policy statement) (emphasis added). The Court followed this law in imposing Harris's sentence. He was not given credit for time served at his sentencing, because he was sentenced to time served for his supervised release revocation. Thus, the two sentences were consecutive rather than concurrent as required by law.
Harris also seems to argue that his counsel was ineffective for failing to object to these consecutive sentences. As just discussed, the consecutive sentences were required by law. Therefore, counsel cannot be found ineffective for failing to make a losing argument. See clemons v. Armontrout, 921 F.2d 187, 191 (8th Cir. 1990).
III. Certificate of Appealability
The Court has also considered whether issuance of a Certificate of Appealability is appropriate. See Tiedeman v. Benson, 122 F.3d 518 (8th Cir. 1997). The Court concludes that no issue raised in this motion is "debatable among reasonable jurists." Flieaer v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994). Thus, Harris has not made "a substantial showing of the denial of a constitutional right," and no certificate will issue. 28 U.S.C. § 2253(c)(2).
IV. Conclusion
For the foregoing reasons, IT IS ORDERED that:
1. Harris's motion for relief pursuant to 28 U.S.C. § 2255 is denied. [Docket No. 741.]
2. No Certificate of Appealability will issue in this case.
LET JUDGMENT BE ENTERED ACCORDINGLY.