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Harris v. United States

United States District Court, N.D. Indiana, Hammond Division

June 27, 2018

WILLIE J. HARRIS, Plaintiff,
v.
UNITED STATES, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON JUDGE UNITED STATES DISTRICT COURT

         Willie J. Harris was the leader of a massive identity theft ring and for his efforts he was convicted by a jury of a slew of crimes generally involving credit card fraud and identity theft. I sentenced him to 156 months' imprisonment and ordered him to pay $299, 298.67 in restitution. He says he received ineffective assistance of counsel, and he now seeks habeas corpus relief under 28 U.S.C. § 2255. Harris's experienced and capable lawyer provided him with a robust defense and fought vigorously on his behalf. There are simply no grounds for relief, and so his petition will be denied.

         Background

         Willie Harris engaged in fraudulent transactions in Indiana beginning in 2007 and lasting until 2010. He and seven co-conspirators fraudulently added themselves as authorized users on existing credit card accounts without the account holders' permission or knowledge. Harris and his co-conspirators then took out cash advances, cashed convenience checks, and made fraudulent purchases. In total, Harris and his co- conspirators' scheme resulted in about $300, 000 of loss to over 50 victims.

         Although Harris' scheme continued until 2010, he had already caught the attention of law enforcement in 2008. On April 7, 2008, Harris and one of his co-conspirators, Darrielle Watkins, attempted to obtain a $4, 500 cash advance at a bank in Munster, Indiana. Harris waited in his truck outside of the bank, while Watkins went inside. The bank employee was suspicious of Watkins and called the police. Upon arrival at the scene, an officer arrested Harris and placed him in the back of the police car. Another officer searched Watkins and discovered the fraudulent credit card, a second credit card not in Watkins' name, and a slip of paper containing the true credit card holder's personal information and bank password.

         When Watkins was placed in a patrol car, she asked the officer to retrieve her personal belongings from Harris' truck, including her backpack, coat, and “school stuff.” The officer came back with her backpack, wallet, and a notebook that was under the backpack. All of these items were in plain view in the truck. Watkins told the officers that the notebook was not hers. When the officers later presented the notebook to Harris, he too claimed that it was not his.

         The notebook proved to be especially incriminating. It contained identifying information of over a dozen people and was covered in Harris' fingerprints. It was introduced as evidence in the trial against Harris. The incident at the bank in Munster was a prelude. The federal investigation into Harris and his fraud ring didn't commence until the following year - March of 2009 - when Chase Bank notified Postal Inspector Carroll Harris about suspicious transactions. Three individuals initially were determined to be the culprits, and Harris was implicated later as the investigation progressed. [DE 592 at 220.]

         Harris and six others were indicted on charges of conspiracy, identity theft, credit card fraud, and aggravated identity theft on July 21, 2010. Five of Harris' co-defendants pleaded guilty, and Harris and one other defendant went to trial. A jury convicted Harris on seven counts, including conspiracy (Count 1), identity theft (Counts 4 and 5), credit card fraud (Counts 6, 8, and 9), and aggravated identity theft (Count 10), and I sentenced him to a total term of 156 months and three years' supervised release on April 4, 2014. [DE 405; DE 575.] He appealed to the Seventh Circuit, which affirmed the verdict and sentence on October 1, 2015. [DE 664.]

         Standard of Review

         A federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Relief under § 2255 is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). A § 2255 motion is neither a “recapitulation of nor a substitute for a direct appeal.” Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (citation omitted). Such relief is extraordinary because it seeks to reopen the criminal process to a person who has already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)).

         Discussion

         Liberally construing his pro se motion, as I am required to do, Erickson v. Pardus, 551 U.S. 89, 94 (2007), I discern a multitude of various claims that Harris alleges warrant habeas relief. He claims that his trial counsel was ineffective based on numerous grounds and that his appellate counsel was ineffective for failing to raise the ineffective assistance of his trial counsel and failing to raise certain other issues related to his trial. Harris also argues that several substantive errors denied him the right to a fair trial.

         Ineffective Assistance of Trial Counsel

         I begin first with Harris' claim that his trial counsel was constitutionally ineffective. To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel's performance “fell below an objective standard of reasonableness, ” and (2) “that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.” Hinton v. Alabama, 134 S.Ct. 1081, 1088 (2014) (citing Strickland v. Washington, 466 U.S. 668, 688-94 (2009)). If the defendant cannot establish both of these factors, the claim fails. Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir. 2002). In applying this test, the court is “highly deferential to counsel, ” and there is a “strong presumption that counsel's decisions constitute reasonable litigation strategy.” United States v. Scanga, 225 F.3d 780, 783-784 (7th Cir. 2000) (internal quotation marks omitted).

         Harris claims that there are eight bases for finding that his trial counsel was ineffective. Harris says that his trial counsel failed to: (1) challenge the illegality of the search and seizure; (2) object to my opinion denying his motion to suppress; (3) object to the government's vouching of witnesses and detaining officers; (4) object to the government's knowing presentation of perjury; (5) object to a variance; (6) seek suppression of alleged co-conspirators' statements at trial; (7) object to a constructive amendment; and (8) object to the admission of certain documentary evidence at trial. I will address each of these claim in turn.

         1. Failure to challenge the illegality of the search and seizure

         Harris first argues that his attorney was ineffective because he failed to challenge the illegality of the search and seizure in 2008 at the bank in Munster. Harris claims that had his attorney done so, the evidence obtained from this search would have been excluded and the charges against him dismissed. At the outset, I note that Harris' attorney did challenge the search of his automobile by filing a motion to suppress. [DE 306.] Harris' motion was the subject of a hearing, extensive briefing, and a 17-page opinion. After carefully considering the arguments made by both Harris' counsel and the government, I denied Harris' motion to suppress. [DE 339.] Moreover, Harris' appellate counsel appealed my ruling, which was affirmed by the Seventh Circuit. [DE 35 in No. 14-1486 (7th Cir. July 1, 2015).] So to say that Harris' counsel failed to challenge the admission of the evidence obtained from this search is nonsensical.

         But Harris seems to be trying to make a slightly different point. He indicates that his trial counsel did not challenge the stop, i.e., the seizure of his person, as opposed to the search. The problem with this argument is that it mischaracterizes what actually happened. Harris' trial counsel in fact challenged the seizure. [See DE 325 at 34.] Harris' motion sought the suppression of “any and all items seized from the Defendant's vehicle due to an unlawful search and seizure.” [DE 306 at 3 (emphasis added).] Harris' attorney argued in his motion that, at the time of his arrest, Harris “had broken no laws and he had committed no driving offenses, however, an officer of the Munster Police Department confronted Willie Harris, ” and “detained/arrested Defendant without a warrant and without probable cause.” [Id. at 1.]

         Additionally, the substance of trial counsel's argument at the suppression hearing also focused heavily on the arrest. Trial counsel noted that he thought Harris was arrested because the car had been parked in a handicapped parking spot but that is not an arrestable offense. He further argued that under Indiana law, for an infraction such as this one, an individual may be detained only to gather information concerning their identity and registration so as to issue a citation. [DE 331-1 at 34.] He argued that a brief detention for these purposes was not grounds to incarcerate someone or to put him in a custodial situation. [Id.]

         Finally, in his opening brief, Harris' appellate counsel also indicated that Harris' trial counsel had raised and argued the issue of Harris' detention and arrest. [DE 15 at 5, in No. 14-1846 (7th Cir. Filed Sept. 2, 2014).] Likewise, in rejecting Harris' argument that the notebook should have been suppressed, the Seventh Circuit expressly noted that Harris' trial counsel moved to suppress the notebook on the ground that his arrest at the bank was illegal. But this argument was a nonstarter because, as the Seventh Circuit explained, even if the arrest at the bank was illegal, it did not bar the admission of evidence that was found as a result of a valid automobile search. [DE 35 at 16, in No. 14-1846 (7th Cir. July 1, 2015).] So contrary to Harris' contention, his trial ...


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