999 F.Supp. 467 (W.D.N.Y. 1998), 92-CR-60, United States v. Harmon

Docket Nº:92-CR-60L.
Citation:999 F.Supp. 467
Party Name:UNITED STATES of America, Plaintiff, v. James B. HARMON, Defendant.
Case Date:April 23, 1998
Court:United States District Courts, 2nd Circuit, Western District of New York

Page 467

999 F.Supp. 467 (W.D.N.Y. 1998)

UNITED STATES of America, Plaintiff,

v.

James B. HARMON, Defendant.

No. 92-CR-60L.

United States District Court, W.D. New York.

April 23, 1998

Page 468

James B. Harmon, Lompoc, CA, pro se.

DECISION AND ORDER

LARIMER, Chief Judge.

INTRODUCTION

Defendant, James B. Harmon, was convicted in a jury trial in this court in 1992 of bank robbery and of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). In a letter dated February 1, 1998, and received by the court on February 27, 1998, Harmon asked the court to vacate his § 924(c) conviction based on the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Harmon also requests certain other relief regarding his sentence and conditions of incarceration. Harmon's letter was filed on March 5, 1998 as a motion to vacate his conviction under 28 U.S.C. § 2255.

Before addressing the merits of Harmon's motion, however, I note that this is the second § 2255 motion that he has filed challenging his § 924(c) conviction. His first such motion was filed on February 24, 1995, and I dismissed it on May 13, 1996. The Court of Appeals for the Second Circuit affirmed that dismissal on June 24, 1996.

In Triestman v. United States, 124 F.3d 361 (2d Cir.1997), the Second Circuit held that, following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which amended § 2255 in several respects, a defendant may not bring a second or successive petition under § 2255 to vacate a § 924(c) conviction pursuant to Bailey. The court ruled that although Bailey changed the law with respect to what must be proven to support a § 924(c) conviction, it did not fall within the current § 2255's exception permitting a second or successive petition to be heard if it is based on a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." Id. at 372. The court also held, however, that if the defendant is asserting his actual innocence, he remains entitled to bring a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). Id. at 380. I will therefore treat Harmon's letter to the court as a § 2241 petition.

DISCUSSION

I. Effect of Bailey v. United States

In Bailey, the...

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5 practice notes
  • Taylor v. Rowland, 020204 CTDC, 3:02cv229(DJS)(TPS)
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • February 2, 2004
    ...at *5 (D. Conn. Jan. 31, 2000) (holding that inmate has no protected liberty interest in his classification); United States v. Harmon , 999 F.Supp. 467, 469-70 (W.D.N.Y. 1998) (holding that federal inmate has no liberty interest in any particular classification). See also Pugliese v. Nelson......
  • United States v. Nasso, 111604 NYEDC, 02-CR-606 (FB)
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • November 16, 2004
    ...§ 3621(b). Moreover, prisoners generally have "no liberty interest in any particular classification." United States v. Harmon, 999 F.Supp. 467, 469-70 (W.D.N.Y. 1998) (refusing to direct the BOP to lower a prisoner's custody classification). See also Lile v. Simmons, 143 F.Supp.2d......
  • 263 F.Supp.2d 463 (D.Conn. 2003), 300 CV 595, Torres v. Stewart
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • May 27, 2003
    ...at *5 (D.Conn. Jan.31, 2000) (holding that inmate has no protected liberty interest in his classification); United States v. Harmon, 999 F.Supp. 467, 469-70 (W.D.N.Y.1998) (holding that federal inmate has no liberty interest in any particular classification). See also Pugliese v. Nelson, 61......
  • Taylor v. Levesque, 110905 CTDC, 3:03CV1347(HBF)
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • November 9, 2005
    ...at *5 (D. Conn. Jan. 31, 2000) (holding that inmate has no protected liberty interest in his classification); United States v. Harmon , 999 F.Supp. 467, 469-70 (W.D.N.Y. 1998) (holding that federal inmate has no liberty interest in any particular classification). See also Pugliese v. Nelson......
  • Free signup to view additional results
5 cases
  • Taylor v. Rowland, 020204 CTDC, 3:02cv229(DJS)(TPS)
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • February 2, 2004
    ...at *5 (D. Conn. Jan. 31, 2000) (holding that inmate has no protected liberty interest in his classification); United States v. Harmon , 999 F.Supp. 467, 469-70 (W.D.N.Y. 1998) (holding that federal inmate has no liberty interest in any particular classification). See also Pugliese v. Nelson......
  • United States v. Nasso, 111604 NYEDC, 02-CR-606 (FB)
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • November 16, 2004
    ...§ 3621(b). Moreover, prisoners generally have "no liberty interest in any particular classification." United States v. Harmon, 999 F.Supp. 467, 469-70 (W.D.N.Y. 1998) (refusing to direct the BOP to lower a prisoner's custody classification). See also Lile v. Simmons, 143 F.Supp.2d......
  • 263 F.Supp.2d 463 (D.Conn. 2003), 300 CV 595, Torres v. Stewart
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • May 27, 2003
    ...at *5 (D.Conn. Jan.31, 2000) (holding that inmate has no protected liberty interest in his classification); United States v. Harmon, 999 F.Supp. 467, 469-70 (W.D.N.Y.1998) (holding that federal inmate has no liberty interest in any particular classification). See also Pugliese v. Nelson, 61......
  • Taylor v. Levesque, 110905 CTDC, 3:03CV1347(HBF)
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • November 9, 2005
    ...at *5 (D. Conn. Jan. 31, 2000) (holding that inmate has no protected liberty interest in his classification); United States v. Harmon , 999 F.Supp. 467, 469-70 (W.D.N.Y. 1998) (holding that federal inmate has no liberty interest in any particular classification). See also Pugliese v. Nelson......
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