United States v. Harris
| Decision Date | 27 December 2012 |
| Docket Number | Case No. 89-CR-91-TCK |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DARREN L. HARRIS, Defendant. |
| Court | U.S. District Court — Northern District of Oklahoma |
Before the Court is Petitioner's Motion Pursuant to Rule 60(b)(6) to Reopen the Judgment/Order Entered Under Title 28 U.S.C. § 2255 (Doc. 409).
On September 6, 1989, a federal grand jury charged Defendant Darren Harris ("Harris") and five codefendants in a conspiracy to distribute controlled substances. Following conviction by a jury, United States District Judge Dale Cook sentenced Harris to 360 months imprisonment on February 14, 1990 ("1990 Judgment"). Harris appealed the 1990 Judgment. On September 27, 1990, while his direct appeal was pending, Harris filed a motion under 28 U.S.C. § 2255 ("1990 § 2255 Motion"). On October 4, 1990, Judge Cook denied Harris's 1990 § 2255 motion. Judge Cook noted that the pendency of Harris's direct appeal did not pose a jurisdictional bar, and that the Tenth Circuit had already rejected the one issue raised in Harris's motion - namely, that the federal sentencing guidelines were unconstitutional.
On direct appeal, the Tenth Circuit affirmed Harris's conviction but remanded for the district court to make required findings regarding Harris's objections to the Presentence Investigation Report. United States v. Harris, 944 F.2d 784 (10th Cir. 1991), cert. denied, Harris v. United States,502 U.S. 1044 (1992). On remand, Judge Cook "made additional findings affecting drug quantities: in particular, that Harris was responsible for four kilograms of crack cocaine, given the amount of time that Harris was involved in the conspiracy." United States v. Harris, 347 Fed. App'x 363, 364 (10th Cir. 2009). Based on these drug quantity findings, Judge Cook again sentenced Harris to 360 months imprisonment and entered an amended judgment on April 14, 1992 ("1992 Judgment"). Harris appealed the 1992 Judgment, and the Tenth Circuit affirmed his sentence. United States v. Harris, 984 F.2d 1095 (10th Cir. 1993).
On April 16, 1997, Harris filed another § 2255 motion ("1997 § 2255 Motion"), asserting four grounds for relief: (1) ineffective assistance of trial counsel for failing to file a pretrial motion challenging whether Harris's participation in the conspiracy was after his eighteenth birthday; (2) ineffective assistance of trial counsel for failing to obtain police reports in pretrial discovery; (3) ineffective assistance of trial counsel for failing to object to police officer's opinion testimony; and (4) ineffective assistance of counsel for failing to challenge prosecutorial misconduct. Judge Cook concluded that the motion was a second or successive § 2255 motion over which the Court lacked jurisdiction and transferred the motion to the Tenth Circuit pursuant to 28 U.S.C. § 1631.
Harris then moved the Court to reconsider its decision that the 1997 § 2255 Motion was second or successive, arguing that the 1990 § 2255 did not qualify as a first § 2255 motion because it was filed while Harris's direct appeal was pending. Judge Cook found that "[c]ontrary to Harris's argument, the Court did not find in its October 4, order that a jurisdictional bar precluded the filing and consideration of a § 2255 filed during the pendency of Harris' appeal." (See Doc. 228.) Rather, the Court made a substantive determination that the argument presented in in the 1990 § 2255 Motion was "meritless." Id. Judge Cook concluded that "it is clear that Harris has previously fileda § 2255 motion, and that such motion was considered and rejected on the merits." Id. Thus, Judge Cook held that he had properly deemed the 1997 § 2255 Motion as a second or successive § 2255 motion. On June 13, 1997, the Tenth Circuit denied authorization to file a successive § 2255 motion.
In 2000, Harris filed a petition for permission to file a successive § 2255 with the Tenth Circuit, which was denied. In 2008, Harris moved for appointment of counsel to aid him in petitioning the Court for a sentence reduction under Amendment 706 to the United States Sentencing Guidelines. Judge Cook denied the motion, finding that because Harris's sentence was based upon 4.5 kilograms of cocaine base, Amendment 706 did not reduce Harris's offense level.
In 2009, Harris again moved for appointment of counsel and for a sentence reduction under Amendment 706, Kimbrough v. United States, 128 S. Ct. 558 (2007), and United States v. Booker, 543 U.S. 220 (2005). Judge Cook denied both motions, again noting that the quantity of cocaine base attributed to Harris rendered him ineligible for relief under Amendment 706. Harris appealed, and the Tenth Circuit affirmed the denial. United States v. Harris, 347 F. App'x 363 (10th Cir. 2009).
On October 7, 2011, Harris filed the currently pending motion entitled "Petitioner's Motion Pursuant to Rule 60(b)(6) to Reopen the Judgment/Order entered under Title 28 U.S.C. § 2255." Therein, Harris raises four arguments: (1) Judge Cook's conclusion that the 1997 § 2255 motion was a second or successive § 2255 motion must be reconsidered and vacated in light of the Supreme Court's decision in Magwood v. Patterson, 130 S. Ct. 2788 (2010) ("Procedural Claim"); (2) his counsel was ineffective during the 1992 resentencing proceedings because counsel failed to warn Harris that the Court "could resentence to a higher drug amount than what was charged in theindictment and presented to a jury"(Mot. 4) ("Ineffective Assistance Claim"); (3) the Court erred by failing to decrease Harris's offense level based on his status as a minimal or minor participant in the offense ("Minor Participant Claim"); and (4) his sentence should be reduced because 2010 amendments to § 4A1.1(e) of the United States Sentencing Guidelines function to remove "recency points" included in his base offense level ("Recency Points Claim"). The Ineffective Assistance Claim, Minor Participant Claim, and Recency Points Claim are collectively referred to as the "Substantive Claims."
First, the Court must determine to what extent Harris's motion arises under Rule 60(b) or is actually a second or successive § 2255 motion. See United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006) (). If it is a successive § 2255 motion, this Court lacks jurisdiction to deny the relief sought. See id. (). This is because a second or successive § 2255 motion "cannot be filed in district court without approval" by the Tenth Circuit. See id.; see also 28 U.S.C. § 2255(h) (). In contrast, if it is a true Rule 60(b) motion, this Court has jurisdiction to consider the motion. See id.
A motion styled as a Rule 60(b) motion "is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction."Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006); see also Nelson, 465 F.3d at 1148 () (quoting 28 U.S.C. § 2255)). "Conversely, it is a 'true' 60(b) motion if it either (1) challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application; or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition." Spitznas, 464 F.3d at 1215-16 (internal citations omitted); see also In re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009) (same).
The Procedural Claim - namely, whether Judge Cook's classification of the 1997 § 2255 Motion as a successive § 2255 motion - is a true Rule 60(b) motion because it challenges a procedural ruling that precluded a merits determination. The United States concedes this point. (See Resp. to Def.'s Rule 60(b) Mot. 7 (). Therefore, the Court has jurisdiction to consider the Procedural Claim under Rule 60(b). In contrast, the Substantive Claims attack the sentence imposed in the 1992 Judgment. Therefore, the Court lacks jurisdiction to consider such arguments if the current filing is deemed "second or successive" to the 1990 § 2255 Motion and/or the 1997 § 2255 Motion. This question is addressed below in Part IV.
"Relief under Rule 60(b) is discretionary and is warranted only in exceptional circumstances." Van Skiver v. United States, 952 F .2d 1241, 1243 (10th Cir.1991); see also Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). "A litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)'s six grounds for relief from judgment." Van Skiver, 952 F.2d at 1243-44. According to Rule 60, a court may grant relief from judgment for one of the following reasons:
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