United States District Court, S.D. Indiana, Indianapolis Division
DANNY G. HARMON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
GRANTING SECOND AMENDED MOTION FOR RELIEF PURSUANT TO 28
U.S.C. Â§ 2255
Jane Magnus-Stinson, Chief Judge
reasons explained in this Entry, the second amended motion of
Danny Harmon for relief pursuant to 28 U.S.C. § 2255,
dkt. , is GRANTED.
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.
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
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.,
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.
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).
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.
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.
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.
§ 2255 Hearing
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.
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 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.
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 ...