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Harmon v. United States

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

May 23, 2018

DANNY G. HARMON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ENTRY DENYING MOTION FOR RECONSIDERATION

          Hon. Jane Magnus-Stinson, Chief Judge

         The Court granted petitioner Danny Harmon's second amended motion for relief pursuant to 28 U.S.C. § 2255 on March 6, 2018, and entered Final Judgment that same date. Before the Court is the government's motion to reconsider pursuant to Federal Rule of Civil Procedure 59(e). For the reasons explained below, the government's motion to reconsider, dkt. [77], is denied.

         I. Legal Standard

         Federal Rule of Civil Procedure 59(e) provides that “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” The purpose of a Rule 59(e) motion is to have the Court reconsider matters “properly encompassed in a decision on the merits.” Osterneck v. Ernst and Whinney, 489 U.S. 169, 174 (1988). However, a Rule 59(e) motion “is not a fresh opportunity to present evidence that could have been presented earlier.” Edgewood Manor Apartment Homes, LLC v. RSUI Indem. Co., 733 F.3d 761, 770 (7th Cir. 2013). Nor does Rule 59(e) “entitle a party to advance after judgment a non-jurisdictional argument that could have been presented prior to judgment.” Lardas v. Grcic, 847 F.3d 561, 566 (7th Cir. 2017). Instead, to receive the requested relief, the moving party “must clearly establish (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Id. A “manifest error” means “wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Relief through a Rule 59(e) motion for reconsideration is an “extraordinary remed[y] reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).

         II. Discussion

         The government argues that the Court committed multiple manifest errors in granting Mr. Harmon's motion for relief pursuant to § 2255. The Court will begin by discussing the propriety of the government's arguments in a Rule 59(e) motion. Next, the Court will discuss the government's arguments as they relate to the performance and prejudice elements of Mr. Harmon's ineffective assistance of counsel claim. Lastly, the Court will discuss the government's objection to the Court's proposed remedy. The following discussion assumes a knowledge of and incorporates the factual background and analysis in the Court's Entry granting Mr. Harmon relief issued on March 6, 2018.

         A. Rule 59(e) Standards

         Certain of the government's arguments are properly raised in a Rule 59(e) motion-such as the government's argument that the Court improperly used hindsight in a manner contrary to Strickland-as they directly respond to how the Court applied the law and thus could not have been raised earlier. These arguments are discussed below.

         But many of the government's argument could have been raised prior to Final Judgment and thus should not have been raised for the first time in the government's Rule 59(e) motion.[1] See Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012) (“[Rule 59(e)] motions are not appropriately used to advance arguments or theories that could and should have been made before the district court rendered a judgment[.]”) (citation and quotation marks omitted). For example, the following arguments all could have been raised in briefing or during closing arguments at the hearing, but were not: (1) Mr. Harmon's testimony that he would have entered an open plea if he knew about it is insufficient to establish prejudice, and he must instead present additional objective evidence; (2) Mr. Harmon did not have a viable window in which to enter an open plea; and (3) Mr. Harmon's requested remedy of a full re-sentencing presents double jeopardy concerns and provides him with an undue windfall. These and other arguments addressed below could have been raised prior to the government's Rule 59(e) motion.

         It is within the Court's discretion to reject these arguments for failure to raise them prior to Final Judgment, and the Court does so here. See Lardas, 847 F.3d at 566. Although the Court also rejects these arguments on the merits below, this is only to err on the side of thoroughness and to provide an alternative basis to deny the Rule 59(e) motion.

         B. Deficient Performance

         Before addressing the specifics of the government's arguments relating to the performance of Mr. Harmon's counsel, Jack Crawford, the Court must first address two difficulties with the government's arguments. First, the government's hindsight argument fails to analytically separate the performance and prejudice elements of an ineffective-assistance-of-counsel claim. These are distinct inquiries that require different analyses. The performance inquiry requires the Court to determine whether “counsel's representation fell below an objective standard of reasonableness, ” while the prejudice analysis asks if “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). The government is correct that counsel's performance cannot be judged based on hindsight-that is, the Court must “reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. The prejudice inquiry, however, requires the Court to predict what would have happened but for counsel's deficient performance. Analyzing these elements separately is critical, and the government's failure to do so throughout its brief makes addressing its arguments difficult.

         Second, and more importantly, the government argues as if Mr. Harmon could only have entered an open plea to the drug charges before the superseding indictment was filed, which added the attempt to kill and intimidate a witness charges. For example, the government argues that “the window of time the Court envisioned for [Mr.] Harmon to plead ‘open' did not in fact exist.” Dkt. 77 at p. 7 (capitalization altered). But the Court's analysis did not depend on Mr. Harmon entering an open plea before the superseding indictment. Mr. Harmon could have entered an open guilty plea to just the drug charges at any time, including long after the superseding indictment was filed. Nor, as the government argues later in its motion, did Mr. Harmon himself predicate his claim “on pleading open before the superseding indictment.” Id., p. 20 (citing dkt. 14, p. 15). The government cites Mr. Harmon's First Amended Motion to Vacate in support of this argument, but his Second Amended Motion to Vacate superseded his First Amended Motion and was operative at the time of the hearing. It contains no such limitation on Mr. Harmon's claim. See dkt. 67 at p. 3 (“Trial counsel was ineffective by failing to properly advise Petitioner that he could choose to plead guilty without the benefit of a plea agreement or cooperation with the Government.”). Thus, contrary to the government's position in the instant motion, neither Mr. Harmon's arguments nor the Court's analysis depended on Mr. Harmon entering an open plea before the superseding indictment added the witness charges against him. Following the superseding indictment, Mr. Harmon could have entered an open plea to the drug charges and proceeded to trial on the witness charges.

         With these two important points in mind, the Court turns to the performance element. The Court concluded that Mr. Crawford's performance was deficient in four respects:

First, he failed to recognize and communicate to Mr. Harmon the strength of the government's case as it changed over time. Second, he advised his client either that he could only plead guilty if he cooperated with the government (according to Mr. Harmon), or that he should not plead guilty because the acceptance of responsibility reduction would not be of any benefit to him (according to Mr. Crawford). Third, he failed to extend and participate in plea negotiations with the government. Fourth, he operated under the ...

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