Harrell v. United States
| Decision Date | 10 February 2020 |
| Docket Number | Case No. 2:11-CR-108-FTM-29CM,Case No: 2:16-cv-284-FtM-29MRM |
| Parties | MICHAEL JAMES HARRELL, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #331)1 and Memorandum of Law to Support (Cv. Doc. #2; Cr. Doc. #332) filed on April 19, 2016. The government filed a Response in Opposition to Motion (Cv. Doc. #8) on June 17, 2016. The petitioner filed a Reply (Cv. Doc. #10) on July 11, 2016.
Also before the Court is petitioner's Motion to Grant Harrell Relief in Light of Dimaya v Session (Cv. Doc. #19), filed on August 13, 2018. The government's Response in Opposition (Cv. Doc. #20) was filed on October 26, 2018.
Between March 12, 2019, and October 1, 2019 the case was stayed at petitioner's request (Cv. Docs. #27, #29) awaiting the decision in a case then pending before the United States Supreme Court. After the case was decided, petitioner was allowed to file a supplemental memorandum addressing its impact. On November 20, 2019, petitioner filed two identical documents which were each designated as a Reply (Cv. Docs. #35, #36).
On September 19, 2012, a federal grand jury in Fort Myers, Florida returned an eleven-count Second Superseding Indictment (Cr. Doc. #139) against Michael James Harrell (petitioner or Harrell) and two other defendants. The charges against petitioner were: conspiracy between June 6 and October 7, 2011, to commit armed robbery of banks and a credit union (Count One); conspiracy between the same dates to use and carry a firearm during and in relation to, and possess a firearm in furtherance of, bank robbery (Count Two); armed robbery of a credit union on June 6, 2011 (Count Three); using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, a credit union robbery on June 6, 2011 (Count Four); armed bank robbery on August 12, 2011 (Count Five); using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, a bank robbery on August 12, 2011 (Count Six); armed bank robbery on August 31, 2011 (Count Seven); using and carrying a firearm duringand in relation to, and possessing a firearm in furtherance of, a bank robbery on August 31, 2011 (Count Eight); attempted bank robbery on September 14, 2011 (Count Nine); attempted bank robbery on October 4, 2011 (Count Ten); and attempted bank robbery on October 7, 2011 (Count Eleven).
A jury trial for all three defendants began on January 8, 2013. (Cr. Doc. #193.) On February 1, 2013, the jury returned guilty verdicts on all counts against petitioner, although on Counts Four, Six, and Eight petitioner was convicted only of carrying and possessing a firearm, but not using a firearm. (Cr. Doc. #217.)
On May 13, 2013, the Court sentenced petitioner to concurrent terms of 60 months imprisonment as to Counts One, Two, Three, Five, Seven, Nine, Ten, and Eleven; 84 months imprisonment as to Count Four, to be served consecutively to the 60 month terms; 300 months imprisonment as to Count Six, to be served consecutively to the term in Count Four; and 300 months imprisonment as to Count Eight, to be served consecutive to the Count Six, for a total of 744 months of imprisonment, followed by terms of supervised release. Judgment (Cr. Doc. #254) was filed on May 14, 2013.
Petitioner appealed the judgment and conviction, presenting only one argument - that the district court abused its discretion by denying a motion for a mistrial. (Cr. Doc. #328, p. 2.) On December 18, 2015, the Eleventh Circuit affirmed the convictions.See United States v. Harrell, 635 F. App'x 682 (11th Cir. 2015). Petitioner did not seek a Writ of Certiorari from the United States Supreme Court.
The United States concedes that petitioner's § 2255 motion is timely (Cv. Doc. #8, p. 13), and the Court agrees.
The Court begins with petitioner's claims of ineffective assistance of counsel. Petitioner argues that his trial attorney provided ineffective assistance by failing to raise various objections during trial, and that his appellate counsel provided ineffective assistance by failing to raise certain issues on direct appeal.
The legal standard for ineffective assistance of counsel claims in a habeas proceeding is well established. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate both that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness and (2) prejudice resulted because there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. See Hinton v. Alabama, 571 U.S. 263, 272-73 (2014) (). "Because a petitioner's failure to show either deficientperformance or prejudice is fatal to a Strickland claim, a court need not address both Strickland prongs if the petitioner fails to satisfy either of them." Kokal v. Sec'y, Dep't of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010) (citations omitted).
The proper measure of attorney performance is "simply reasonableness under prevailing professional norms" considering all the circumstances. Hinton, 571 U.S. at 273 (internal quotations and citations omitted). "A fair assessment of attorney performance requires that every effort be made 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." Strickland, 466 U.S. at 689; see also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (). This judicial scrutiny is highly deferential, and the Court adheres to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689-90.
To be objectively unreasonable, the performance must be such that no competent counsel would have taken the action. See Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); see also Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010). Additionally, an attorney is not ineffective for failing to raise or preserve a meritless issue. See United States v. Winfield, 960 F.2d 970, 974(11th Cir. 1992); see also Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).
Petitioner presents seven claims asserting that his trial attorney provided constitutionally ineffective assistance by failing to object during certain portions of the trial. The Court discusses each claim in turn, and finds neither deficient performance by counsel nor prejudice to petitioner.
(1) Lack of Rule 404(b) Notice
During trial, the government introduced testimony from Lakisha Rice, Vincent D'Amore, and Brian Grabecki regarding an attempted armed robbery at Florida Gulf Bank on September 2, 2011. Petitioner asserts that given the date of this attempted bank robbery, his attorney should have known that this offense was not part of the charged offense and therefore a notice was required pursuant to Federal Rule of Evidence 404(b). Because no notice was given, petitioner asserts he was deprived of the opportunity to require the government to demonstrate the relevance of the evidence and prejudiced by the lack of an opportunity to prepare for this testimony. Petitioner asserts that there was a high probability that, had notice been given, the Court would have excluded this evidence. Thus, petitioner argues, his trial attorney provided constitutionally ineffective assistance byfailing to raise the lack of notice issue as to this Rule 404(b) evidence. (Cv. Doc. #2, pp. 3-5; Cv. Doc. #10, pp. 1-2.)
The Court accepts and adopts the government's summary of the evidence concerning the Florida Gulf Bank attempted robbery as being a fair and accurate summary of the evidence:
In 2011, Lakisha Rice worked at a Florida Gulf Coast Bank in Fort Myers. Doc. 297 at 54, 56. She was friends with Harrell, Doc. 297 at 54-55, and, in August 2011, he contacted her and asked for help with a research project about how to start a bank that he supposedly was doing for school, Doc. 297 at 65-66. Rice told him that she could not help him, but he continued to send her text messages asking for help. Doc. 297 at 66; see Gov't Exs. 37-1, 37-2. On September 2, 2011, at about 9:00 a.m., Rice was working with another teller when the other teller noticed that someone was backing up a white truck toward the bank. Doc. 297 at 56; see Gov't Ex. 38A. She yelled, "Oh, my God, ooh, ooh, ooh, it's them," and hit the magnetic lock for the bank's doors. Doc. 297 at 56-57. At the same time, Rice hit the alarm button. Doc. 297 at 57. They heard someone trying to open the door but then saw them speed off in the white truck.Doc. 297 at 56-57. Surveillance cameras outside the bank captured pictures of two men dressed in black trying to get into the bank. Doc. 297 at 58-60; Gov't Ex. 38A. One of the men was carrying a gun. Doc. 297 at 59. A third person was driving the truck. Doc. 297 at 64. Officers found the truck, which had been stolen, about a half mile away. Doc. 297 at 84-85, 93-96, 100; see Gov't Exs. 38C through 38H. A detective later showed Rice a picture of Harrell from the Preferred Community Bank surveillance cameras and asked her if she had ever seen him before. Doc. 297 at 77-78. She recognized Harrell in the photo. Doc. 297 at 79. Cell-phone records showed that Harrell's phone had been in thevicinity of the bank around the time of the robbery. Doc. 305 at 112-13; Gov't Ex. 111D.
Under Rule 404(b),...
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