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Harris v. United States

United States District Court, S.D. Ohio, Eastern Division

May 9, 2017

MARIAH M. HARRIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:13-cr-0068(2)

          MICHAEL H. WATSON JUDGE.

          REPORT AND RECOMMENDATION

          Norah McCann King United States Magistrate Judge.

         Petitioner Mariah M. Harris, a federal prisoner, brings this action for a writ of habeas corpus under 28 U.S.C. § 2255. This matter is before the Court on the Motion to Vacate under 28 U.S.C. § 2255, (Doc. 86)(“Motion to Vacate”), Petitioner's Memorandum of Law in Support of Petitioner's Application and Motion under 28 U.S.C. Section 2255(f)(1) (Doc. 89)(“Memorandum in Support”), Petitioner's Supplement to the Petition under 28 U.S.C. Section 2255 (Doc. 107), Respondent's Response in Opposition (Doc. 108), Petitioner's Reply (Doc. 111), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that the Motion to Vacate under 28 U.S.C. § 2255 (Doc. 86) be DENIED and that this action be DISMISSED.

         Facts and Procedural History

         On March 21, 2013, Petitioner, along with her brother, was indicted on a charge of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, § 2.[1] Indictment (Doc. 1). On September 3, 2013, Petitioner pled guilty to that charge pursuant to a plea agreement. Plea Agreement (Doc. 37). She was sentenced to a term of imprisonment of 108 months. Amended Judgment (Doc. 68). The United States Court of Appeals for the Sixth Circuit affirmed the judgment of this Court. United States of America v. Harris, 617 Fed.Appx. 388 (6th Cir. 2015). In doing so, the Court of Appeals summarized the facts of the case as follows:

Darnell and Mariah Harris are brother and sister, currently 27 and 21 years old, respectively. On May 21, 2012, they robbed a jewelry store. Mariah entered first, posing as a customer, and then covertly called Darnell, apparently to tell him there were only two employees (a male and a female) and no other customers in the store. About 10 minutes later, Darnell entered, wearing a hat and sunglasses, and holding a handgun in the air to announce the robbery. Darnell ordered the employees to the back of the store and duct-taped their hands, ankles, and eyes. While Darnell and Mariah were robbing the store, the male employee worked free from the duct tape. When Darnell heard him, he choked the employee unconscious and beat him with his handgun, causing injuries that required stitches and surgical staples to close the wounds and surgery to repair broken bones and teeth. Both employees eventually required significant psychological counseling.
While Darnell was beating the male employee with the gun, Mariah was insisting, “you said no one would get hurt, ” but Darnell continued. Darnell also sprayed adhesive into the male employee's eyes and held the gun to the employee's head with a promise to kill him. Eventually, Darnell bound the employee with an extension cord and more tape, and returned to the robbery.
Darnell was in the store for about one hour and 15 minutes, though Mariah left after about 45 minutes. After she left, Darnell demanded the employees' names and addresses so he could find them if they called the police. Darnell and Mariah stole $53, 734 in jewelry, $3, 125 in cash, and the store's video surveillance system. Neither of the employees could offer the police any reason for Darnell's violence or for his prolonging the robbery for over an hour, particularly given that the employees offered no resistance and the male employee had offered Darnell and Mariah whatever they wanted if they would just leave.
A little over two months later, on August 1, 2012, the male employee was in a Kroger grocery store and spotted Darnell and Mariah. But they also recognized him and immediately abandoned their shopping cart and ran from the store. With this second sighting and the Kroger surveillance video, the employee was able to identify Darnell and Mariah for the police.
Police arrested Darnell and Mariah. The prosecutor charged both with robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951, and also charged Darnell with brandishing a firearm, in violation of 18 U.S.C. § 924(c)(1)(A)(i) & ii). Both entered guilty pleas.
After conducting a thorough sentencing hearing, the court sentenced Darnell to 171 months in prison. Mariah's counsel conceded that her guidelines range was 108 to 135 months but sought a downward variance based on her youth, lack of criminal history, Darnell's influence, and her expectation that during the robbery no one would be hurt. The court sentenced her to 108 months, the bottom of the advisory range. Neither the defendants nor the government raised any objections following the court's Bostic inquiry. See United States v. Bostic, 371 F.3d 865 (6th Cir. 2004).
Mariah argues that the district court erred by denying her request for a downward variance from the advisory sentencing range. That request was premised on a variety of facts and circumstances: this was her first conviction, she was young (18 years old at the time of the crime), she was influenced by her older brother (Darnell), she did not anticipate any violence (based on her statements during the crime), and she left the store before the robbery was complete. The court considered all of these factors but declined to grant a variance, instead sentencing her to the bottom of the guideline range. Mariah now argues that the sentence imposed was substantively unreasonable.
We review the substantive reasonableness of a sentence for an abuse of discretion. United States v. Gall, 552 U.S. 38, 51 (2007). Sentences within the guidelines range are presumed reasonable. United States v. Adkins, 729 F.3d 559, 564 (6th Cir. 2013).
Here, the district court considered all of the relevant sentencing factors as well as the additional factors that Mariah emphasizes on appeal. Mariah can point to no authority for the proposition that because the court could have varied downward on the basis of these factors, the court should have done so, or that its refusal to do so resulted in a sentence that is unreasonable. We find no abuse of discretion here.

Id. at 389-91.

         On April 4, 2016, and acting without the assistance of counsel, Petitioner filed the Motion to Vacate, alleging that her trial counsel was ineffective at the pretrial stage, during the plea negotiation process, and at sentencing. In her Reply, Petitioner also appears to argue that, because the sentencing range found by the Court was based on enhancements not found by a jury, “Petitioner's enhancements must be revoked and her sentence adjusted downward to reflect the correct sentence range.” Reply (Doc. 111, PageID# 527).[2] Respondent contends that Petitioner's claims are without merit.

         Standard of Review

         In order to obtain relief under 28 U.S.C. § 2255, a petitioner must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or when the trial court lacked jurisdiction, when the sentence was in excess of the maximum sentence allowed by law, or when the judgment or conviction is “otherwise subject to collateral attack.” United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). However, “‘[a] § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exception circumstances.'” DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996)(quoting United States v. Brown, 62 F.3d 1418 (6th Cir. 1995)(unpublished)). Further, non-constitutional claims not raised at trial or on direct appeal are waived on collateral review except where the errors amount to something akin to a denial of due process. Grant v. United States, 72 F.3d 5043, 506 (6th Cir. 1996). Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained on a motion to vacate under § 2255 unless the petitioner shows: (1) cause and actual prejudice sufficient to excuse her failure to raise the claims previously; or (2) that she is “actually innocent” of the crime. See Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(citing Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal citations omitted).

A petitioner who entered a guilty plea must show an error of constitutional magnitude that had a substantial and injurious effect or influence on the proceedings. Griffin v. United States,330 F.3d 733, 736 (6th Cir. 2003)(citing Abrahamson, 507 U.S. at 637). Therefore, a court may only grant relief under § 2255 if the petitioner demonstrates “‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. at 736 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). A petitioner further bears the burden of articulating sufficient facts to state a viable claim for relief under § 2255. Vague and conclusory claims which are not substantiated by allegations of specific facts with some probability of verity are not enough to warrant relief. A § 2255 motion may be dismissed if it only makes conclusory statements ...

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