United States v. Harris

• Decision Date: 31 August 2016
• Docket Number: CRIMINAL NO. 1:CR-06-0268
• Parties: UNITED STATES of America v. Delmar HARRIS, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

205 F.Supp.3d 651

UNITED STATES of America

v.Delmar HARRIS, Defendant.

CRIMINAL NO. 1:CR-06-0268

United States District Court, M.D. Pennsylvania.

Signed August 31, 2016

Michael A. Consiglio, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

MEMORANDUM

William W. Caldwell, United States District Judge

I. Introduction

Defendant, Delmar Harris, has filed a motion under 28 U.S.C. § 2255 seeking to vacate the 180-month (15-year) sentence imposed on him under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The ACCA requires a mandatory minimum sentence of fifteen years for a defendant who has been convicted under 18 U.S.C. § 922(g) and who has three prior convictions for either a "violent felony" or a "serious drug offense."

Defendant argues that his sentence is no longer valid in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ( " Johnson (2015)").¹ In Johnson (2015), the Supreme Court struck down as unconstitutionally vague the residual clause in 18 U.S.C. § 924(e)(2)(B). Id. at ––––, 135 S.Ct. at 2557. Subsection (e)(2)(B) defines a "violent felony" for the purpose of determining whether a defendant qualifies for the fifteen-year sentence mandated by the ACCA.² Defendant argues that without the residual clause his prior convictions no longer qualify him as an armed career criminal under the elements clause or the enumerated-offenses clause.

The government opposes the motion, asserting that Defendant could have made the Johnson (2015) argument on direct appeal and hence he has procedurally defaulted it. The government also contends that Defendant's arguments against use of the elements clause and enumerated-offenses clause to qualify his prior convictions as predicate offenses are time-barred since they are not based on Johnson (2015) but on case law that was available before Johnson (2015) was decided.

II. Background

On August 2, 2006, Defendant was named in a two-count indictment. Count I charged that on February 2, 2006, Defendant, "having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess a firearm," in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Count II charged him with the same offense, but occurring on April 29, 2006.

On December 8, 2006, Defendant executed a written plea agreement, agreeing to plead guilty to Count I, and on September 21, 2006, Defendant pled guilty to that Count.

A presentence report (PSR) was prepared. The PSR did not specify which of Defendant's prior convictions qualified as predicate offenses under the ACCA. As Defendant sets forth at page 2 of his motion, and as the government agrees, the following prior convictions could have qualified: (1) burglary, criminal conspiracy, aggravated assault and robbery (PSR ¶ 21); (2) robbery and criminal conspiracy (PSR ¶ 23); (3) unlawful delivery of a controlled substance (cocaine) (PSR ¶ 25); and (4) aggravated assault, resisting arrest and escape (PSR ¶ 26).³

A guidelines range of 135 to 169 months was calculated, taking into account in part that Defendant qualified under the ACCA as an armed career criminal. (PSR ¶¶ 16 and 45). However, since the mandatory minimum sentence under the ACCA was fifteen years, the guidelines range became 180 months. (PSR ¶¶ 44 and 45). On December 18, 2006, Defendant was sentenced to 180 months' imprisonment. He took no direct appeal. Some nine and one-half years later, in Johnson (2015)'s wake, Defendant filed the instant 2255 motion.⁴

Defendant argues that without an enhancement under the ACCA, a proper calculation of his guidelines range would be 84 to 105 months, with a statutory maximum sentence of ten years. (Doc. 34, 2255 motion at p. 3). Defendant asserts he has been in custody since August 8, 2006, and has already served almost ten years, not counting good-conduct time. (Id. ).

III. Discussion

A. Harris Has Not Procedurally Defaulted His Claims

Defendant could have raised a vagueness challenge to the residual clause on direct appeal and, in doing so, could have presented the same arguments he makes here as to why the prior convictions are not violent felonies under the elements or enumerated-offenses clauses. A claim that has been procedurally defaulted by failing to raise it on direct review cannot be presented in a 2255 motion. See Bousley v. United States , 523 U.S. 614, 622, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). The government therefore argues that we cannot consider Defendant's motion.⁵

There are exceptions to procedural default. A defendant may raise a procedurally defaulted claim if he shows cause for the default and prejudice to him from the default. Id. , 118 S.Ct. at 1611. See also Hodge v. United States , 554 F.3d 372, 379 (3d Cir.2009).⁶

Defendant argues he did not procedurally default his claim because any challenge made at the time of sentencing would have been futile as it was clear at that time (December 2006) that his prior convictions for burglary, robbery, aggravated assault, resisting arrest and escape would have qualified, at the least, as violent felonies under the residual clause. He cites United States v. Blair , 734 F.3d 218, 223 (3d Cir.2013), and United States v. Gibbs , 656 F.3d 180, 188–89 (3d Cir.2011), for the proposition that the courts did not consider the residual clause unconstitutionally vague at the time he was sentenced. (Doc. 41, 2255 motion, p. 10). Defendant also argues, essentially for the same reason, that if he did default, he has cause to excuse it "because a unanimous body of Supreme Court and Circuit precedent foreclosed Mr. Harris' challenge to his armed career criminal classification under the residual clause." (Id. , p. 11).

We fail to see how these arguments either establish that there is no procedural default or that Defendant has shown cause for his procedural default. The procedural default here is of the claim that the residual clause is unconstitutionally vague. That there was no meritorious argument based on the residual clause's language that the residual clause would not have covered the prior convictions would not have foreclosed the separate constitutional claim that the residual clause is unconstitutionally vague. In this regard, we note that Gibbs and Blair , the two cases that supposedly touch on the constitutional claim, were decided in 2011 and 2013, respectively, several years after Defendant's sentencing in December 2006, and therefore could not have led Defendant to believe a vagueness claim would not have succeeded on appeal. Defendant has therefore defaulted his claim.

Nonetheless, we believe Defendant has cause for his procedural default. Cause can be established "where a constitutional claim is so novel that its legal basis is not reasonably available...." Bousley , 523 U.S. at 622, 118 S.Ct. at 1611 (quoting Reed v. Ross , 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984) ). This can occur "in a variety of contexts...." Reed , 468 U.S. at 17, 104 S.Ct. at 2911. We believe the vagueness claim was not reasonably available to Defendant on the following grounds. First, at the time Defendant was sentenced, the claim does not appear to have been raised in many federal cases. Compare Bousley , 523 U.S. at 622–23, 118 S.Ct. at 1611 (the petitioner could not show cause for failing to raise his claim earlier when at the time of his guilty plea "the Federal Reporters were replete with cases" dealing with the same claim); Parkin v. United States , 565 Fed.Appx. 149, 151–52 (3d Cir.2014) (nonprecedential)(cause not shown when there were a "plethora of cases raising that very claim" at the time of the defendant's direct appeal). Second, at the time of sentencing, there were only three decisions from the courts of appeals discussing whether subsection 924(e)(2)(B) was unconstitutionally vague. All three had ruled, summarily, that it was not. The first two cases did not involve the application of the residual clause. See United States v. Sorenson , 914 F.2d 173, 175 (9th Cir.1990) (dealing with burglary in the enumerated-offenses clause); United States v. Presley , 52 F.3d 64, 68 (4th Cir.1995) (citing Sorenson ) (dealing with the elements clause). However, the third case, United States v. Childs , 403 F.3d 970, 972 (8th Cir.2005) (citing both Sorenson and Presley ), rejected the vagueness claim in the context of applying the residual clause to a conviction for possessing a short-barreled shotgun. Third, if Defendant were to have made a vagueness challenge to the residual clause, he would have had to have done so knowing the language at issue, conduct presenting "a serious potential risk," is similar to language embedded in many federal and state criminal statutes. This similarity led the Supreme Court to reject a suggestion of vagueness in James v. United States , 550 U.S. 192, 210 n. 6, 127 S.Ct.1586, 1598 n. 6, 167 L.Ed.2d 532 (2007).⁷ In these circumstances, Defendant has shown cause for not raising the residual-clause vagueness claim in his direct appeal as it was not reasonably available at that time.

Parenthetically, other courts have found cause to excuse the default of a Johnson (2015) claim, although factual circumstances sometime differed from the instant case. In Casper v. United States , No. 08–CR–127, 2016 WL 3583814, at *4 (W.D.N.C. July 1, 2016), and Cummings v. United States , No. 15–CV–1219, 2016 WL 799267, at *7 (E.D.Wis. Feb. 29, 2016), cause was found on the basis that sentencing in those cases occurred after James, supra, rejected the vagueness challenge to the residual clause but before Johnson (2015) overruled James . See also United States v. Gomez , No. 04–CR–2126, 2016 WL 1254014, at *4 (E.D.Wash. Mar. 10, 2016) (procedural default did not apply when the governing law, Johnson (2015), did not exist until about nine years after the defendant's sentencing); United States v. Dean , 169 F.Supp.3d 1097, 1107–08, 13–CR–137, 2016 WL 1060229, at *6 (D.Or. Mar. 15, 2016).

As noted, to excuse...