Harris v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

-vs- ) Case Nos. CR-22-381-F

) CIV-24-331-F

TONY JAMELL HARRIS, JR., )

)

Defendant. )

ORDER

Defendant, Tony Jamell Harris, Jr., a federal prisoner proceeding pro se, has

moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Doc. no.

33.1 Plaintiff, United States of America, has responded in opposition to the motion.

Doc. no. 40. Defendant has replied and has filed a motion for stay. Doc. nos. 43

and 43-1. Upon due consideration of the parties’ submissions, the court makes its

determination.

I.

Procedural History

On September 7, 2022, the grand jury returned a one-count indictment

charging defendant with felon in possession of ammunition in violation of 18 U.S.C.

§ 922(g)(1). The ammunition at issue was two rounds of Hornady .380 caliber

ammunition. On December 2, 2022, defendant, without a plea agreement, entered a

plea of guilty to the indictment.

1 Because defendant is proceeding pro se, the court construes his filings liberally, but it does not

act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008).

A final presentence investigation report was prepared by the probation office

on March 31, 2023. The probation office calculated defendant’s base offense level

at 20. Defendant received a four-level enhancement under U.S.S.G.2

§ 2K2.1(b)(6)(B) for possessing a firearm in connection with felony eluding and due

to relevant conduct related to feloniously pointing a firearm, resulting in an adjusted

offense level of 24. After applying a three-level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1, defendant’s total offense level was 21.

Based on his criminal history, which included a state conviction for assault

with a dangerous weapon (Oklahoma County District Court, Case No.

CF-2020-1564), defendant received a subtotal criminal history score of 12. Because

defendant committed his offense while under criminal justice sentences, two points

were added under U.S.S.G. § 4A1.1(d), establishing a total criminal history score of

14 and a criminal history category of VI. A total offense level of 21, combined with

a criminal history category of VI, resulted in an advisory sentencing guideline range

of 77 months to 96 months of imprisonment.

The court conducted a sentencing hearing on May 4, 2023. The court adopted

the factual sections of the final presentence investigation report other than the

notation in paragraph 7 that defendant had gang affiliation. The court sentenced

defendant to a term of imprisonment of 96 months and a term of supervised release

of three years. Judgment was entered the next day, May 5, 2024.

Defendant did not file a direct appeal. On February 26, 2024, defendant filed

an Application for Leave to File a Second or Successive Motion to Vacate, Set Aside

or Correct Sentence, 28 U.S.C. § 2255, by Prisoner in Federal Custody. The motion

was stricken as moot by the court because defendant had not previously filed a

§ 2255 motion.

2 United States Sentencing Guidelines.

Subsequently, defendant filed the instant § 2255 motion, which is timely filed

under 28 U.S.C. § 2255(f)(1).3 Defendant asserts three grounds for relief: (1) his

§ 922(g)(1) conviction is unconstitutional; (2) he is a nonviolent felon who may

possess a firearm (and presumably ammunition) under the Second Amendment to

the United States Constitution; and (3) if he exercised his right to go to trial, the

government could not prove the third element of the § 922(g)(1) offense.

The government argues in response that defendant’s grounds are procedurally

barred or, alternatively, fail on the merits.

In his reply brief, defendant contends that he “file[d] ineffective counsel on

[his] [§] 2255 motion” due to the fact his lawyer forced him to sign things he didn’t

want to sign, specifically “waivers.” Doc. no. 43-1, ECF p. 1. He also contends that

he was held “hostage” in federal custody in the Cleveland County jail beginning

September 21, 2022, when there was no warrant or complaint as of that time, and

that he was forced to waive his detention hearing. Id. at ECF pp. 1-2. Further,

defendant contends the court failed to sentence him under an accurate presentence

investigation report because the court did not send him for a psychological

evaluation.

II.

Motion to Stay

With his reply, defendant moves to stay his § 2255 motion. Defendant

requests the court to stay his § 2255 motion pending the Supreme Court’s rulings on

3 Shortly after defendant filed his § 2255 motion, he submitted a letter, which the court construed

as a motion to appoint counsel to assist in determining whether defendant may qualify for a

reduction of sentence pursuant to Amendment 821 of the United States Sentencing Guidelines. So

construed, the motion was stricken as moot by the court because under General Order 23-6, the

Federal Public Defender or his designee was appointed to represent defendant to make such

determination. On May 21, 2024, the Federal Public Defender’s Office filed a notice to the court

that defendant was ineligible for sentencing relief under Amendment 821 and no motion would be

filed on his behalf.

the petitions for writ of certiorari from the appellate court rulings in Vincent v.

Garland, 80 F.4th 1197 (10th Cir. 2023); United States v. Jackson, 69 F.4th 495 (8th

Cir. 2023); United States v. Doss, No. 22-3662, 2023 WL 8299064 (8th Cir. Dec. 1,

2023); and Range v. Attorney General United States of America, 69 F.4th 96 (3d Cir.

2023). Defendant also states that he has contacted the Oklahoma state court and

Oklahoma Department of Corrections to fax proof to the court that he is a nonviolent

offender.

The court finds defendant’s motion should be denied. On July 2, 2024, the

Supreme Court granted the petitions for writ of certiorari in all four cases referenced

by defendant, vacated the judgments, and remanded the cases to the appellate courts

for further consideration in light of United States v. Rahimi, 144 S.Ct. 1889 (2024).

See, Vincent v. Garland, No. 23-683, 2024 WL 3259668; Jackson v. United States,

No. 23-6170, 2024 WL 3259675; Doss v. United States, No. 23-6842, 2024 WL

3259684; and Garland v. Range, No. 23-374, 2024 WL 3259661. As the Supreme

Court has rendered its ruling with respect to the petitions, the court concludes that

no stay of defendant’s § 2255 motion is warranted.

In addition, the court concludes that no stay is warranted to await the “proof”

requested by defendant from the Oklahoma state court and Oklahoma Department

of Corrections. The final presentence investigation report provides pertinent

information as to defendant’s criminal history. The court also may obtain access to

defendant’s state court convictions through the Oklahoma State Courts Network

(OSCN) website.

III.

Analysis

Procedural Bar

A § 2255 motion is not intended as a substitute for direct appeal. United States

v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004); see also, United States v. Allen, 16

F.3d 377, 378 (10th Cir. 1994) (“[Section] 2255 is not available to test the legality of

matters which should have been raised on appeal.”). Consequently, a defendant’s

failure to raise an issue on direct appeal imposes a procedural bar to review in a

§ 2255 proceeding. Id.

There are two well-recognized exceptions under which a defendant may

escape application of the procedural bar. Cervini, 379 F.3d at 990. First, defendant

may show “cause and prejudice,” that is, that he had “both good cause for failing to

raise the issue [on direct appeal], and that the court’s failure to consider the claim

would result in actual prejudice to his defense[.]” Id. A defendant can show “cause”

if he can “demonstrate that his claim was so novel that its legal basis was not

reasonably available to counsel.” United States v. Wiseman, 297 F.3d 975, 979 (10th

Cir. 2002) (quotation marks and citation omitted). In addition, “cause” can “be

established by showing that counsel rendered constitutionally ineffective

assistance.” Id. (citations omitted).

Second, if defendant can show that “failure to consider the federal claims will

result in a fundamental miscarriage of justice, the court may reach the merits of the

claimed constitutional deficiencies despite the procedural bar.” Cervini, 379 F.3d at

990-91 (quotation marks and citation omitted). This second exception is “a

markedly narrow one, implicated only in extraordinary cases where a constitutional

violation has probably resulted in the conviction of one who is actually innocent.”

United States v. McGaughy, 670 F.3d 1149, 1159 (10th Cir. 2012). As explained by

the Supreme Court, actual innocence “means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).

Defendant did not file a direct appeal from his conviction and sentence.

Therefore, the grounds upon which he seeks § 2255 relief are subject to procedural

bar. To overcome the procedural bar, defendant must demonstrate “cause and

prejudice” or a fundamental miscarriage of justice. Upon review, the court

concludes that defendant has not made the required showing.

It appears defendant seeks to establish “cause” by arguing that he raised the

issue of ineffective assistance of counsel in his § 2255 motion. However, defendant

did not raise that issue in his motion. Although he asserts in the filing that his

counsel advised him not to challenge his conviction, he does not allege that in so

doing, counsel rendered constitutionally ineffective advice.

A successful claim of ineffective assistance of counsel must meet the

two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a

defendant must show that his counsel’s performance was deficient in that it “fell

below an objective standard of reasonableness.” Id. at 688. Second, a defendant

must show that counsel’s “deficient performance prejudiced [his] defense.” Id. at

687. Defendant’s conclusory allegations in his motion are not sufficient to establish

an ineffective assistance of counsel claim. See, United States v. Fisher, 38 F.3d

1144, 1147 (10th Cir. 1994) (Court is “not required to fashion Defendant’s arguments

for him where his allegations are merely conclusory in nature and without supporting

factual averments.”).

In his reply brief, defendant complains that counsel forced him to sign things

he did not want to sign, specifically waivers. However, defendant’s allegations in

that filing are plainly conclusory. The court concludes that the conclusory

allegations are insufficient to support an ineffective assistance of counsel claim. The

court therefore concludes that defendant has failed to show “cause” to overcome the

procedural bar for consideration of his defaulted claims. Consequently, the court

need not address whether defendant has demonstrated prejudice.

Defendant does not address the fundamental miscarriage of justice exception

in his motion or his reply brief. To establish actual innocence, defendant “must

demonstrate that, in light of all the evidence, it is more likely than not that no

reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (quotation

marks and citation omitted). As stated, actual innocence “means factual innocence,

not mere legal insufficiency.” Id. Defendant has not made such demonstration with

his filings.

In sum, the court concludes that defendant’s grounds for relief in his § 2255

motion are procedurally barred. The court thus concludes that defendant’s motion

should be denied as procedurally barred.

Merits

Alternatively, even if defendant’s grounds for relief were not procedurally

barred, the court concludes that they are without merit.

Defendant challenges his § 922(g)(1) conviction, claiming the prohibition in

§ 992(g)(1) violates the Second Amendment rights of nonviolent felons like himself.

In United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009), the Tenth Circuit

squarely upheld the constitutionality of the ban on convicted felons’ possession of

firearms. Following the Supreme Court’s decision in N.Y. State Rifle & Pistol

Ass’n, Inc. v. Bruen, 142 S.Ct. 2111 (2022), a plaintiff, who was convicted of a

nonviolent felony, filed suit challenging the ban as violating the Second Amendment

rights of nonviolent felons. See, Vincent, 80 F.4th at 1199. The district court

dismissed the suit following McCane. Id. On appeal, the Tenth Circuit determined

that McCane had not been overruled by Bruen. Specifically, the appellate court

found that Bruen did not “indisputably and pellucidly abrogate [the] precedential

opinion in McCane.” Id. at 1202. And because McCane “upheld the

constitutionality of the federal ban for any convicted felon’s possession of a

firearm,” the Tenth Circuit followed McCane and affirmed the dismissal of the

plaintiff’s suit. Id. (emphasis in original).

The Tenth Circuit’s judgment in Vincent was recently vacated and remanded

by the Supreme Court for further consideration in light of the decision in United

States v. Rahimi. The court, however, opines that the Tenth Circuit’s ruling in

Vincent will not change in light of Rahimi. The court opines that neither Rahimi

nor Bruen indisputably and pellucidly abrogate the Tenth Circuit’s precedential

opinion in McCane. However, even if they did, and the ban were held by the Tenth

Circuit not to apply to nonviolent felons as defendant argues, the court finds that

based on defendant’s criminal history, which includes an assault with dangerous

weapon,4 defendant does not qualify as a nonviolent felon and the ban on his

possession of a firearm or ammunition is not unconstitutional.

Defendant also challenges the government’s ability at trial to satisfy the “third

element” of the § 922(g)(1) offense. Defendant does not specify what that element

is, but it appears defendant challenges the government’s ability to prove that “the

defendant knew he was convicted of a felony at the time he possessed [the

ammunition].” Tenth Circuit, Criminal Pattern Jury Instructions 2.44 (Possession of

a Firearm by a Convicted Felon 18 U.S.C. § 922(g)(1) (2021 Edition).

Because defendant pleaded guilty to the § 922(g)(1) charge and the court has

rejected his constitutional challenge to the § 922(g)(1) conviction, defendant’s

challenge to the government’s ability to satisfy the third element at trial is clearly

without merit. Nonetheless, based on the record, the court concludes that the

government would be able to prove that defendant knew he had been convicted of a

felony at the time he possessed the ammunition.

In his motion, defendant claims that he was unaware that he could not possess

the ammunition because he was able to purchase it at a store and his probation officer

did not tell him he couldn’t purchase it. But the government is not required to prove

4 An assault with a dangerous weapon conviction under 21 O.S. § 645 constitutes a “violent felony”

under the elements clause of the Armed Career Criminal Act. United States v. Thompson, 736

Fed.Appx.756, 760 (10th Cir. 2018) (unpublished decision cited as persuasive pursuant to 10th Cir.

R. 32.1(A)).

that defendant knew his conduct was prohibited by law or that defendant knew his

felon status prohibited him from possessing the ammunition. United States v.

Benton, 988 F.3d 1231, 1238 (10th Cir. 2021). Rather, the government is only

required to prove that defendant knew he possessed the ammunition, and he knew

he had been convicted of a felony. Id.

Based on the foregoing, the court concludes that defendant’s grounds for

relief are without merit.5

IV.

Evidentiary Hearing

The court file and record conclusively show that defendant is not entitled to

relief under § 2255. A hearing is therefore not warranted. See, Sanders v. United

States, 373 U.S. 1, 21 (1963) (sentencing court has discretion to ascertain whether

claim is substantial before granting full evidentiary hearing in a § 2255 matter).

V.

Certificate of Appealability

Under Rule 11(a) of the Rules Governing Section 2255 Proceedings for the

United States District Courts, the court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant. A certificate of

appealability may issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court

rejects the constitutional claims on the merits, the movant must show that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where

5 In his reply brief, defendant appears to raise additional claims in support of § 2255 relief. The

court declines to address the additional claims because they were raised for the first time in the

reply brief. See, United States v. Lee Vang Lor, 706 F.3d 1252, 1256 (10th Cir. 2013) (movant

waived § 2255 claim raised for the first time in a reply brief).

the district court denies a § 2255 motion on procedural grounds, the movant must

show that “jurists of reason would find it debatable whether the [motion] states a

valid claim of the denial of a constitutional right and that jurists of reason would find

it debatable whether the district court was correct in its procedural ruling.” Jd. Upon

review, the court finds that defendant cannot make such showing. The court thus

denies a certificate of appealability.

VI.

Conclusion

Accordingly, defendant, Tony Jamell Harris, Jr.*s Motion Under 28 U.S.C.

§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody

(doc. no. 33) is DENIED. A certificate of appealability is also DENIED. Judgment

shall issue forthwith.

IT IS SO ORDERED this 29" day of July, 2024.

Ab Dust

UNITED STATES DISTRICT JUDGE

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