# Harris v. United States

> District Court, W.D. Oklahoma · July 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10665927

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** July 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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

22-0381p010 rev_.docx

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10665927. Public record. Not legal advice.