United States District Court, S.D. Ohio, Eastern Division
MARIAH M. HARRIS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:13-cr-0068(2)
MICHAEL H. WATSON JUDGE.
REPORT AND RECOMMENDATION
McCann King United States Magistrate Judge.
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
and Procedural History
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. 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
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 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.
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.
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). Respondent contends that Petitioner's
claims are without merit.
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 ...