Harley v. United States
| Decision Date | 29 August 2014 |
| Docket Number | Case No. 1:14CV00051 SNLJ |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | DAVID LEE HARLEY, Movant, v. UNITED STATES OF AMERICA, Respondent. |
This case is a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by David Lee Harley, a person in federal custody. On May 21, 2012, Harley plead guilty before this Court to the offense of conspiracy to distribute 280 grams or more of cocaine base and, on August 20, 2012, this Court sentenced Harley to the Bureau of Prisons for a term of 240 months, a sentence within the sentencing guideline range. Harley's § 2255 motion, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.
On July 21, 2011, Movant David Lee Harley (Harley) was charged in Count I of a three-count Indictment with conspiracy to distribute 280 grams or more of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(A). Harley was not named in Counts II and III of the Indictment.
On May 21, 2012, Harley appeared with his attorney before this Court and pled guilty to Count I of the Indictment. Harley executed a Plea Agreement with his counsel and the government. (Doc. 350) Under the Plea Agreement, the government agreed to seek statutory enhancement of Harley's sentence pursuant to Title 21, U.S.C. § 841(b)(1)(A) and § 851(a) for only one of Harley's prior felony drug offenses, which subjected Harley to a mandatory minimum sentence of twenty years pursuant to 21 U.S.C. § 841(b)(1)(A). (Plea Ag. p. 2) If the government had filed notice of both of Harley's prior convictions for felony drug offenses, he would have been subjected to a mandatory minimum term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). (Plea Ag. p. 2) Prior to the plea hearing, on May 17, 2012, the government filed an "Information and Notice of Enhanced Sentence in Accordance with 21 U.S.C. § 851," which specified that Harley was subject to the enhanced penalty provisions of 21 U.S.C. § 841(b)(1)(A). (Doc. 342) The Notice stated that Harley's prior convictions for felony drug offenses for possession of a controlled substance with intent to distribute was being used for purposes of the enhancement, and further specified that the enhancement called for a term of imprisonment which may not be less than 20 years and not more than life imprisonment. (Doc. 342)
During his change of plea hearing on May 21, 2012, Harley stated that he understood the inclusion of the statutory enhancement of the sentence, and understood that he would be subjected to a minimum mandatory sentence of 20 years. (Plea Tr. 7) The government confirmed with the Court that the § 851 Notice had been filed on May 17, 2012. (Plea Tr. 8)
Harley acknowledged in the Plea Agreement that the "defendant... fully understands that the crime to which a guilty plea is being entered requires a mandatory minimum term of imprisonment of at least twenty years." (Plea Ag. ¶5) During the plea hearing, Harley indicated that the sentencing guidelines had been explained to him by his attorney, and that he understood the guidelines and the total offense level and criminal history category as explained by the Court. (Plea Tr. 9)
The Plea Agreement noted that "[t]he defendant has been fully apprised by defense counsel of [his] rights concerning appeal and fully understands the right to appeal the sentence under Title 18 U.S.C. § 3745." (Plea Ag. ¶7) The parties waived all rights to appeal non-jurisdictional, non-sentencing issues, including any issues related to pretrial motions, discovery and the guilty plea. (Plea Ag. ¶7) Harley waived all rights to appeal all sentencing issues other than Criminal History, so long as the Court accepted the plea, the U.S.S.G. Total Offense Level agreed therein, and sentenced Harley within or below that range. (Plea Ag. ¶7, Plea Tr. 9)
Harley also agreed "to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to title 28 U.S.C Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel." (Plea Ag. ¶7.b) Harley agreed that he was (Plea Ag. ¶ 9)
At the change of plea hearing, Harley was asked if he was "satisfied with the way [his] lawyer has handled [his] case?," to which Harley responded, "Yes, sir." (Plea Tr. 4) Harley was asked if his attorney had "investigated [Harley's] case to [Harley's] satisfaction?" and if his attorney had "done everything [Harley] asked him to do then?" Harley responded "Yes, sir" to both questions. (Plea Tr. 4)
Harley acknowledged "having voluntarily entered into both the plea agreement and guilty plea," and that "[he], is in fact, guilty." (Plea Ag. 11) The plea was signed by all parties on May 21, 2012. (Plea Ag. 12) Harley stated that he had signed, read, and gone over the plea agreement in detail with his lawyer. (Plea Tr. 6)
A Presentence Report (PSR) was prepared by order of the Court. The PSR provided that Harley's Base Offense Level was 32. (PSR ¶33). A three level reduction for acceptance of responsibility brought the total offense level to a 29. (PSR ¶¶40-42) Harley's criminal history category was a V (PSR ¶62). His statutory mandatory term of imprisonment on Count I was 20 years and the maximum was life based on 21 U.S.C. § 846, 21 U.S.C. § 841 (b)(1)(A), and 21 U.S.C. § 851. (PSR ¶91) The guideline imprisonment range was 240 months based on U.S.S.G. § 5G1.1(b). (PSR ¶92)
Prior to the sentencing hearing, Harley filed an objection to the imposition of a mandatory minimum sentence of twenty years. (Doc. 409) At the sentencing hearing on August 20, 2012, Harley objected to the guideline range stated in the PSR based on the assertion that it amounted to "cruel and unusual punishment in violation of due process."(S. Tr. 4) This Court overruled the objection. Id. Harley was sentenced to the statutory minimum and guidelines' sentence of 240 months imprisonment. (S. Tr. 12)
Notwithstanding his written agreement to waive his right to appeal, Harley timely filed a direct appeal to the Eighth Circuit Court of Appeals on August 29, 2012. The government filed a motion to dismiss Harley's appeal on October 18, 2012, because Harley had waived his right to appeal when entering in to a plea agreement. As indicated in Attachment 1, on October 23, 2012, the Eighth Circuit granted the government's motion and dismissed Harley's appeal.
On April 17, 2014, Harley filed a Motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
1. Harley repeatedly alleges that his prior state conviction "standing alone does not reveal whether either remuneration or more than a small amount [of a controlled substance] was involved [in his prior conviction]," therefore, his conviction could correspond to either a felony or a misdemeanor under 21 U.S.C § 841(b)(4). (2255 Mot. 20) Harley devotes several pages of his Motion to claiming that because his prior state felony drug conviction could have been a misdemeanor under the Controlled Substances Act, his sentence was improperly enhanced under 21 U.S.C § 841(b)(1)(A) and § 851.
2. Harley alleges that his counsel was ineffective because he failed to challenge Harley's prior state conviction according to 21 U.S.C § 841(b)(4), and if his counsel haddone so, Harley would not have pled guilty. (2255 Mot. 53, 79) Harley alleges that his counsel was ineffective because "he could have received a lighter sentence in light of 21 U.S.C. 841(b)(4) had counsel availed himself with basic legal research." (2255 Mot. 47) Harley also claims that his counsel was ineffective for not pursuing this claim on appeal. (2255 Mot. 86-92)
3. Harley alleges prosecutorial misconduct that was "in [d]irect violation of the "Equal Protection Clause" as incorporated into the fifth amendment (sic) to th (sic) United States Constitution "Due Process Clause" for that BOGUS UNLAWFUL FAULTY PEN REGISTER TRAP AND TRACE DEVICE APPLICATION ORDER(CHAPTER 26) to telecommunication service providers. In [v]iolation of [his] eight amendment (sic) to the United States Constitution "Cruel and Unusual Punishment Clause." (2255 Mot. 120)
4. Harley alleges that charging each conspirator in one conspiracy constitutes prosecutorial misconduct mainly because (2255 Mot. 147)
II. APPLICABLE LAW
28 U.S.C. § 2255 provides in pertinent part:
Unless the motion and the files and records of the case conclusively show that the prisoner is not entitled to relief, the court shall . . . grant a prompt hearing thereon.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Court states:
The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits in the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.
When a petition is brought under Section 2255, the petitioner bears the burden of establishing the need for an evidentiary hearing. Section 2255 provides a remedy for jurisdictional and constitutional...
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