Harrington v. United States

• Decision Date: 06 August 2012
• Docket Number: Docket No. 11–2119–pr.
• Parties: Stephen HARRINGTON, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

689 F.3d 124

Stephen HARRINGTON, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

Docket No. 11–2119–pr.

United States Court of Appeals, Second Circuit.

Argued: May 4, 2012.

Decided: Aug. 6, 2012.

Robert C. Mirto, Law Offices of Mirto & Rasile, LLC, West Haven, CT, for Appellant.

Sarah P. Karwan (Robert M. Spector, on the brief), Assistant United States Attorneys, on behalf of David B. Fein, United States Attorney for the District of Connecticut, New Haven, CT, for Appellee.

Before: SACK, RAGGI, and LOHIER, Circuit Judges.

REENA RAGGI, Circuit Judge:

Stephen Harrington is presently incarcerated serving a statutorily mandated 15–year prison sentence under the Armed Career Criminal Act (“ACCA”), see18 U.S.C. § 924(e), on his guilty plea to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). See United States v. Harrington, 241 Fed.Appx. 777, 778 (2d Cir.2007) (summary order affirming conviction), cert. denied,552 U.S. 1209, 128 S.Ct. 1261, 170 L.Ed.2d 112 (2008). Harrington now appeals from a judgment entered on May 10, 2011, in the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge ) denying his motion pursuant to 28 U.S.C. § 2255 to vacate the 15–year prison sentence. On appeal, he argues that (1) sentencing counsel was constitutionally ineffective for failing to challenge application of the ACCA to his case; (2) the sentencing court erred, in any event, in finding him to have at least three prior convictions qualifying as ACCA predicates; and (3) the residual clause of the ACCA for identifying violent felony crimes, see18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague on its face.

In addition to opposing these challenges on the merits, the government argues that certain of them are procedurally barred. We agree that Harrington's vagueness challenge is barred because it was not presented to the district court and is not included in the certificate of appealability. Thus, we do not address it. We need not, however, conclusively decide the remaining two procedural challenges because even if we were to resolve both of them in Harrington's favor, his appeal would nevertheless fail on the merits. We here hold that first-degree unlawful restraint under Connecticut law, seeConn. Gen.Stat. § 53a–95, is a violent felony under the ACCA's residual clause. This ruling, together with the fact of Harrington's two prior first-degree robbery convictions—the ACCA predicate status of which is undisputed—compel imposition of the statutorily mandated minimum 15–year prison term, see18 U.S.C. § 924(e)(1), thereby defeating Harrington's challenges on appeal.

Accordingly, the district court's judgment is affirmed.

I. BackgroundA. Conviction, Sentence, and Direct Appeal

On January 30, 2004, Harrington was arrested in New Haven, Connecticut, in possession of two .38 caliber revolvers.¹ At the time, he already had two prior convictions, from 1987 and 1999, for first-degree robbery, seeConn. Gen.Stat. § 53a–134; as well as single prior convictions for the sale of narcotics, see id. § 21a–277(a); carrying a dangerous weapon, see id. § 53–206; and first-degree unlawful restraint, see id.§ 53a–95. These convictions were all obtained pursuant to Alford pleas, whereby Harrington accepted responsibility for the charged criminal conduct without expressly admitting guilt. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); accord United States v. Savage, 542 F.3d 959, 962 (2d Cir.2008).

On March 17, 2005, Harrington pleaded guilty in the District of Connecticut to one count of possession of a firearm by a convicted felon, see18 U.S.C. § 922(g)(1), pursuant to an agreement wherein the prosecution predicted a Sentencing Guidelines range of 168 to 210 months' incarceration, with a 180–month mandatory minimum sentence required by the ACCA due to his prior convictions. At sentencing, Harrington was represented by counsel from the Office of the Federal Defender, who argued that convictions obtained pursuant to Alford pleas cannot qualify as ACCA predicates.Citing this court's decision in Burrell v. United States, 384 F.3d 22, 24 (2d Cir.2004), the district court ruled otherwise. It further ruled that Harrington's prior Connecticut convictions for first-degree robbery and first-degree unlawful restraint qualified as ACCA violent felony predicates, see18 U.S.C. § 924(e)(2)(B)(ii), and that his conviction for sale of narcotics qualified as a serious drug offense predicate, see id. § 924(e)(2)(A)(ii). Accordingly, it sentenced Harrington to the mandatory minimum prison term of 15 years for defendants with at least three prior convictions for violent felonies, serious drug offenses, or both. See id. § 924(e)(1).

On direct appeal, Harrington continued to be represented by the Office of the Federal Defender. Rather than pursue an Alford-based objection to application of the ACCA to Harrington's case, counsel argued that the Sixth Amendment requires a jury, rather than a sentencing judge, to determine whether prior convictions qualify as ACCA predicates. Although this argument was not raised in the district court, we considered and rejected it on the merits in light of our decision in United States v. Santiago, 268 F.3d 151, 157 (2d Cir.2001). See United States v. Harrington, 241 Fed.Appx. at 778.

B. Section 2255 Motion

On December 3, 2008, Harrington filed a pro se motion for § 2255 relief from his sentence on the ground that his sentencing and appellate counsel had been ineffective in failing to challenge the treatment of his prior convictions as ACCA predicates. After two rounds of briefing, the district court ordered that Harrington be appointed counsel under the Criminal Justice Act (“CJA”). See18 U.S.C. § 3006A(a)(2)(B). In October 2010, Harrington's CJA counsel filed a memorandum of law synthesizing and expanding on his client's arguments as follows: (1) counsel was constitutionally ineffective in not arguing that Harrington's prior convictions for first-degree armed robbery, first-degree unlawful restraint, and sale of narcotics did not qualify as ACCA predicates; and (2) even if counsel was not ineffective, Harrington should be allowed now to challenge the use of his convictions as ACCA predicates because (a) new substantive rules of federal criminal law announced in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), apply retroactively on collateral review; ² and (b) cause and prejudice exists to excuse Harrington's procedural default of these ACCA challenges, specifically, the legal bases for his arguments were not reasonably available to counsel at sentencing or on appeal, see Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

The district court denied Harrington's § 2255 motion. It found that sentencing counsel was not constitutionally ineffective because first-degree armed robbery and first-degree unlawful restraint under Connecticut law are violent felonies under the ACCA. It further concluded that those three convictions were enough to trigger the mandatory minimum sentence of 15 years' imprisonment without regard to whether Harrington's sale-of-narcotics conviction also qualified as a serious drug offense predicate.

Harrington timely appealed, moving in the district court for a certificate of appealability on five grounds: (1) sentencing counsel was ineffective in failing to argue that his four Connecticut convictions were not ACCA predicates; (2) his first-degree unlawful restraint conviction was not a violent felony; (3) his sale-of-narcotics conviction did not qualify as an ACCA predicate because it was based on an Alford plea, and there was not evidence of the type of drug involved in the offense; (4) Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, affords him a direct right to challenge his sentence; and (5) the issues raised are so novel as to excuse any procedural default at sentencing or on direct appeal. The district court summarily endorsed the certificate of appealability motion on June 14, 2011. Approximately two months later, on August 9, 2011, Harrington moved to amend the certificate to add a sixth argument not previously presented to or ruled on by the district court: the ACCA's residual clause defining non-enumerated violent felony crimes is unconstitutionally vague. On July 9, 2012, the district court denied leave to amend in light of Harrington's failure to raise the claim in his § 2255 motion.

II. DiscussionA. Standard of Review

On appeal from a district court's denial of habeas relief under 28 U.S.C. § 2255, we review factual findings for clear error and conclusions of law de novo. See Ventry v. United States, 539 F.3d 102, 110 (2d Cir.2008). Mindful that a § 2255 motion is not a substitute for direct appeal, see Zhang v. United States, 506 F.3d 162, 166 (2d Cir.2007), we will not afford collateral review to claims that a petitioner failed properly to raise on direct review unless the petitioner shows (1) good cause to excuse the default and ensuing prejudice, or (2) actual innocence, see Bousley v. United States, 523 U.S. at 622, 118 S.Ct. 1604;United States v. Thorn, 659 F.3d 227, 231 (2d Cir.2011). We review de novo the question whether procedural default of a claim raised for the first time on collateral review may be excused. See United States v. Thorn, 659 F.3d at 231.

One claim that may appropriately be raised for the first time in a § 2255 motion, “whether or not the petitioner could have raised the claim on direct appeal,” is ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 504, 509, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); accord Yick Man Mui v. United States, 614 F.3d 50, 54 (2d Cir.2010). To succeed on an ineffective assistance claim, a petitioner must show that (1) counsel's performance...