Harris v. U.S.

• Decision Date: 04 April 2003
• Docket Number: No. 97 CIV.1904(CSH).,97 CIV.1904(CSH).
• Parties: Roy William HARRIS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

293 F.Supp.2d 259

Roy William HARRIS, Petitioner, v. UNITED STATES of America, Respondent.

No. 97 CIV.1904(CSH).

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

April 4, 2003.

John Conway, Greenwich, CT, for Petitioner.

MEMORANDUM OPINION AND ORDER

HAIGHT, Senior District Judge.

Petitioner Roy William Harris has moved pursuant to Rule 60(b)(6), Fed. R.Civ.P., for relief from the Opinion and Order of this Court dated May 20, 1998, which dismissed Harris's petition for a writ of habeas corpus under 28 U.S.C. § 2255. Harris v. United States, 9 F.Supp.2d 246 (S.D.N.Y.1998), aff'd., 216 F.3d 1072, 2000 WL 730375 (2d Cir.2000) (table).¹ Harris seeks by his present motion to reduce the length of his sentence, on the ground that this Court's Sentencing Guideline calculations were incorrect. The present circumstances of the case are described in this Court's opinion dated October 30, 2002 and reported at 2002 WL 31427358 (the "October Opinion"), familiarity with which is presumed.

In the October Opinion I ruled that Harris's Rule 60(b) motion was not procedurally barred, and declared my intention to consider its merits. The government moved for reconsideration of that ruling. I decided to combine the government's renewed assertions of procedural bar with a consideration of the merits of Harris's challenge to the Court's sentencing calculations. Further briefs were exchanged. Counsel for the parties argued both aspects of the case on February 5, 2003. For the reasons I stated at that hearing, Tr. 2-5, and do not here reiterate, I will state my views on the merits of Harris' motion even if I conclude that it is procedurally barred. I consider these two questions in turn.

I. PROCEDURAL BAR

In its initial opposition to Harris's motion, the government contended that four procedural bars precluded Harris from challenging the Court's Sentencing Guidelines calculations and consequently the length of his sentence: (1) failure to raise these sentencing issues at the sentencing hearing; (2) failure to raise those issues on direct appeal; (3) the impropriety of using a Rule 60(b) motion to circumvent the statutory restrictions on second or successive § 2255 habeas petitions; and (4) the asserted untimeliness of the Rule 60(b) motion. At oral argument on February 5, 2003 the government abandoned the first asserted bar, the sentencing minutes having revealed that counsel then representing Harris had raised the points at issue. Government counsel laid initial stress upon the third procedural bar, and I consider that question first in this Opinion.

A. The Efficacy of Harris' Rule 60(b) Motion

The government contended that Harris' utilization of Rule 60(b) as a vehicle for relief is "twice damned: first, as an impermissible effort to circumvent the one-year statute of limitations on bringing claims under § 2255; and second, as an equally impermissible effort to circumvent the statutory restrictions on second or successive § 2255 petitions." October Opinion at 2002 WL 31427358 *8. I rejected the first contention summarily, reasoning that the government had failed to "show that, as a matter of law, I am required to peel off Mr. Lynam's [counsel for Harris] Rule 60(b) label and affix a § 2255 label." Id. The "question of substance" was "whether Harris was impermissibly invoking Rule 60(b) to circumvent the statutory restrictions on second or successive habeas corpus applications found in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(b), incorporated by reference in the last paragraph of § 2255." Id. at *9 (footnote omitted). That question is also dispositive, since it is common ground that if the procedural vehicle of a Rule 60(b) motion is not available to Harris, he cannot surmount the restrictions imposed by the AEDPA. See the October 30 Opinion, 2002 WL 31427358, at *9 n. 5.

In answering that question in the negative, I relied upon Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir.2001), where the Second Circuit said:

We now rule that a motion under Rule 60(b) to vacate a judgment denying habeas is not a second or successive habeas petition and should therefore be treated as any other motion under Rule 60(b).

252 F.2d 191, 198. That language is seemingly very broad; but the court said later in Rodriguez::

We note that the ground petitioner asserts in support of his motion—his claim that Mort, his state trial attorney, made fraudulent representations to the federal district court and that the respondent fraudulently concealed that respondent had deposed Mort—relates to the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial. These grounds, if proven, would simply result in the reopening of the federal habeas proceeding—not in the vacating of the state criminal judgment.

252 F.3d at 199.

In its first brief the government relied upon that language to argue that Rodriguez is "better read" as holding that Rule 60(b) motions will not be treated as second or successive petitions when they go to the integrity of the initial habeas proceedings, which the government contended Harris's Rule 60(b) motion did not do. See October Opinion at *11. In the October Opinion I rejected that argument for two reasons:

First, the government reads Rodriguez too narrowly, given the broad language with which the Second Circuit expressed its reasoning, a rationale that would on its face apply to all Rule 60(b) motions to vacate habeas denials, whether or not the motion attacked the integrity of the initial habeas proceeding. Second, even on the government's narrow reading of Rodriguez, Harris is in fact attacking the integrity of the initial habeas proceedings submitted by Mr. Conway [counsel for Harris at the time]. Specifically, Harris contends that Mr. Conway rendered ineffective assistance of counsel by failing to include in the habeas petition the sentencing claims which Mr. Lewis's [counsel for Harris at the time] ineffective assistance caused to be omitted from the direct appeal.

Id. The government's motion for reconsideration on the procedural bar aspect of the case challenges both reasons and demonstrates the necessity for further analysis.

First, as to the breadth of Rodriguez's language: in a subsequent decision, Kellogg v. Strack, 269 F.3d 100, 102 n. 2 (2d Cir.2001), the Second Circuit appeared to speak in equally broad tongues. ("This Court has recently settled the question of whether a Rule 60(b) motion for relief from the denial of a § 2254 petition should be treated as a second or successive habeas petition. See Rodriguez v. Mitchell, 252 F.3d 191, 198-200 (2d Cir.2001) (holding that such a motion should not be treated as a second or successive petition.")). But it would now appear that Rodriguez had not settled the question. In the more recent case of Gitten v. United States, 311 F.3d 529, 532 n. 4 (2d Cir.2002), decided after the October Opinion in the case at bar, the Second Circuit said:

In suggesting that Rodriguez "settled" the issue by ruling that a 60(b) motion should never be treated as a second or successive motion, Kellogg v. Strack, 269 F.3d 100, 102-03 n. 2 (2d Cir.2001), somewhat overstated the matter. Rodriguez concerned a 60(b) motion with grounds that "relate[d] to the integrity of the federal habeas proceeding, not to the integrity of the [underlying conviction]." 252 F.3d at 199.

The government's reconsideration motion requires me to consider what Gitten says about what Kellogg said about Rodriguez, in order to determine whether I can still regard the statement in Rodriguez that "a motion under Rule 60(b) to vacate a judgment denying habeas is not a second or successive habeas petition" as applying to all such Rule 60(b) motions, whatever the grounds asserted for them, as Harris contends, or only to Rule 60(b) motions with grounds relating to the integrity of the habeas proceeding, as the government contends.

If the government is correct in that contention, one must evaluate the second prong of my reasoning in the October Opinion, namely, that Harris' Rule 60(b) motion "attack[ed] the integrity of the initial habeas proceedings submitted by Mr. Conway" by contending that Mr. Conway rendered ineffective assistance of counsel in those proceedings. The government contends that conclusion is untenable in light of the Supreme Court's decision in Coleman v. Thompson, 501 U.S. 722, 752-53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), where the Court said:

There is no constitutional right to an attorney in state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (applying the rule to capital cases). Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. See Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (where there is no constitutional right to counsel there can be no deprivation of effective assistance). Coleman contends that it was his attorney's error that led to the late filing of his state habeas appeal. This error cannot be constitutionally ineffective; therefore Coleman must "bear the risk of attorney error that results in a procedural default."

(emphasis added).²

Two months before its decision in Coleman, the Supreme Court decided McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). McCleskey undertook to clarify the abuse-of-the-writ doctrine, "a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions," id. at 489 111 S.Ct. 1454, whose purpose was to "define[] the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus." Id. at 470, 111 S.Ct. 1454.³ The Court held in McCleskey that under the abuse-of-the-writ doctrine,...