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Harmon v. United States

United States District Court, S.D. Indiana, Indianapolis Division

March 6, 2018

DANNY G. HARMON, Petitioner,


          Hon. Jane Magnus-Stinson, Chief Judge

         For the reasons explained in this Entry, the second amended motion of Danny Harmon for relief pursuant to 28 U.S.C. § 2255, dkt. [67], is GRANTED.

         I. Background

         An indictment was filed on May 10, 2011, charging Mr. Harmon with conspiracy to distribute 100 kilograms or more of marijuana, three counts of attempting to possess with intent to distribute marijuana, and one count of using a telephone to facilitate drug trafficking, in violation of 21 U.S.C. §§ 846, 841, and 843. No. 1:11-cr-0084-JMS-DKL-1; Crim. Case; dkt. 1. An Information pursuant to 21 U.S.C. § 851(A)(1) alleging a prior felony drug conviction was filed on May 18, 2011. Id., dkt. 16.

         Mr. Harmon hired defense attorney Jack Crawford, who appeared in the case on May 31, 2011. Id., dkt. 20. With the filing of the § 851, Mr. Harmon was facing ten years to life.

         The government sought a single continuance of the trial on June 30, 2011. Id., dkt. 26. Mr. Harmon objected and a hearing was conducted on July 11, 2011. After the hearing, the Court granted the government's motion to continue the trial and reset the trial for August 22, 2011. Id., dkt. 42.

         On July 28, 2011, a Superseding Indictment was filed adding charges of attempting to kill and intimidate a witness and increasing the amount of marijuana charged to 1, 000 kilograms or more, which increased Mr. Harmon's potential sentence to 20 years to life. Id., dkt. 53. Following a four day trial that began on August 22, 2011, a jury found Mr. Harmon guilty on the drug offenses and acquitted him on the additional charges. On January 20, 2012, the Court sentenced him to 360 months in prison. Id., dkt. 119.

         The Seventh Circuit affirmed Mr. Harmon's convictions and sentence. United States v. Harmon, 721 F.3d 877, 885, 887, 892 (7th Cir. 2013). The United States Supreme Court denied Mr. Harmon's petition for writ of certiorari. Harmon v. United States, 134 S.Ct. 1014 (Jan. 21, 2014).

         On March 25, 2015, the Court granted Mr. Harmon's motion to reduce sentence pursuant to U.S.S.G. Amendment 782. His sentence of imprisonment of 360 months was reduced to 324 months. Crim. Case; dkt. 231.

         On January 22, 2015, Mr. Harmon, by counsel, filed a motion to vacate under 28 U.S.C. § 2255 in this civil case, asserting claims of ineffective assistance of counsel. Counsel's motion to withdraw was granted on March 17, 2015. Dkt. 9. Mr. Harmon, pro se, filed an amended motion to vacate on April 27, 2015. Dkt. 14. After the government responded and Mr. Harmon replied, the Court set the matter for a hearing on August 31, 2016, and appointed counsel to represent Mr. Harmon. Dkt. 34. After four continuances were granted, the evidentiary hearing was conducted on February 6, 2018.

         Mr. Harmon's motion for leave to file a second amended motion to vacate, filed on February 2, 2018, was granted. In his second amended motion, Mr. Harmon brought two claims of ineffective assistance of counsel. Dkt. 67. On the day of the hearing, however, Mr. Harmon abandoned one of his claims and proceeded with a single claim of ineffective assistance of counsel, that trial counsel failed to properly advise Mr. Harmon during the pretrial period.

         II. § 2255 Hearing

         At the evidentiary hearing conducted on February 2, 2018, Mr. Harmon called two witnesses: trial counsel Jack Crawford and himself. In addition to the testimony, several audio recordings of conversations between Mr. Crawford and Mr. Harmon were played and entered into evidence. The Court listened to the recordings of the entire phone calls admitted into evidence after the hearing.

         As an initial matter, the Court can appreciate that it must be challenging to have allegations of ineffective assistance of counsel made against an experienced defense attorney, but from the moment the hearing began, Mr. Crawford displayed considerable hostility toward Mr. Harmon's counsel. His defensive attitude made the fact-finding process more difficult than necessary and arguably reflected a bias toward the government.

         During the hearing, both Mr. Crawford and Mr. Harmon testified that throughout the pretrial phase of the case, Mr. Crawford viewed the government's case as weak, and he did not believe they had a case against Mr. Harmon. Hearing in § 2255 Case, Transcript, February 6, 2018, (“Trans.”); dkt. 71, pp. 12-13, 31, 45-46, 73, 87. Mr. Crawford stated that this was a “historical case, ” meaning the government could not place any marijuana in Mr. Harmon's possession. Id., p. 73. “It was all in somebody else's possession.” Id. Mr. Crawford testified that his opinion as to the weakness of the case did not ever change. Id., pp. 81, 87.

         Mr. Crawford testified that he had never before, as a strategy, sought a speedy trial on the first trial setting. Id., p. 41. He stated that he “certainly would have liked more time, but I felt that time was working against Mr. Harmon. The longer this case pended, the more the Government would find out about a lot of things that would hurt my client.” Id. Mr. Crawford testified that the Superseding Indictment adding the charges of attempted murder of Mr. Meadows “only increased my desire to get this case to trial.” Id., p. 40. Mr. Crawford “was very concerned about what might happen.” Id. He testified that the government was “learning day by day by day as to how vast [Mr. Harmon's marijuana business] was and what it involved and the people it involved.” Id., p. 42. Mr. Crawford thought that with ...

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