United States v. Harris , 643 F. App'x 734 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 23, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-5084
(D.C. Nos. 4:14-CV-00745-GKF-PJC and
GERMAIN HARRIS, 4:12-CR-00037-GKF-1)
(N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Germain Harris seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2255 motion.1 We deny a COA and dismiss
the appeal.
I
As part of a murder investigation, police witnessed a suspect enter and exit an
auto shop owned by Harris. Police obtained a search warrant based on an affidavit
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Harris filed a notice of appeal from the district court judgment. Because he
may not appeal from a final order in a § 2255 proceeding without a COA,
§ 2253(c)(2), and because the district court did not grant a COA, we construe Harris’
notice of appeal as a request for a COA. Fed. R. App. P. 22(b)(2).
stating that a firearm used in the murder or keys to the getaway vehicle may be
located inside the shop. The ensuing search did not uncover evidence related to the
murder. But the police did find cocaine, cocaine base, items used to manufacture and
distribute cocaine base, a pistol, and ammunition. Harris was indicted on several
charges. He moved to suppress evidence found during the search, arguing the
officer’s probable cause affidavit did not provide a sufficient nexus between the
alleged criminal activity and the shop. The court denied his motion. A jury
convicted Harris of drug manufacture, possession, and distribution charges, and of
being a felon in possession of a firearm. He was sentenced to 180 months’
imprisonment. Harris appealed and this court affirmed. United States v. Harris, 735
F.3d 1187, 1194 (10th Cir. 2013). Harris then filed a motion for relief under § 2255,
which the district court denied. This request for a COA followed.
II
We may issue a COA to appeal a final order denying § 2255 relief “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). A “substantial showing” exists if “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Harris advances claims of ineffective assistance of trial and appellate counsel.
To prevail, he must make a substantial showing that his counsel “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
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the Sixth Amendment” and that “ the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is
prejudicial if there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
Harris complains the district court should have granted an evidentiary hearing
so that he could demonstrate trial counsel failed to pursue testimony from an
exculpatory witness. He claims the witness would have testified that Harris was not
aware of the contraband or drug activities occurring in the auto shop, and identified
another individual responsible for that contraband. Harris fails to directly identify
the witness who would provide this testimony, but construing his pro se pleadings
liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), it appears likely
Harris is referring to Alonzo Johnson—the suspect that entered the auto shop leading
police to seek the search warrant. However, the district court determined that trial
counsel’s decision not to interview Johnson was reasonable given the circumstances
as they existed at the time of the challenged conduct. In his request for a COA,
Harris offers no argument challenging this determination as erroneous, nor does he
explain how an evidentiary hearing would change the outcome.2 Thus, he has not
2
In a seemingly related argument, Harris suggests trial counsel failed to
conduct relevant discovery and failed to interview a witness whose post-trial affidavit
demonstrates a reasonable probability that his testimony would have changed the
outcome of the trial. However, Harris does not identify what evidence counsel
should have pursued. Nor does he indicate what the witness’s affidavit states, what
the testimony would have been, or why it likely would have changed the outcome of
trial. Without more information, we are unable to conclude that counsel’s failure to
investigate was deficient or prejudicial. Similarly, Harris argues that appellate
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made a substantial showing that counsel was ineffective for failing to interview
Johnson.
Harris also contends appellate counsel was ineffective for failing to object to
the trial court’s application of the Armed Career Criminal Act (“ACCA”). The court
concluded ACCA applied based on three drug convictions for drug sales Harris made
to undercover officers on three separate occasions over a ten day period.3 Harris
argues that these convictions all resulted from the same “scheme and plan,” and thus
should have been treated as one offense for sentencing purposes. For support, Harris
invokes United States v. Mohammed, 150 F. App’x 887 (10th Cir. 2005)
(unpublished), in which the court addressed whether prior convictions are “related”
under U.S.S.G. § 4A1.2. Mohammed, 150 F. App’x at 890. However, in United
States v. Delossantos, 680 F.3d 1217 (10th Cir. 2012), we observed that § 4A1.2 is
irrelevant in the ACCA context. Delossantos, 680 F.3d at 1220-21 n.3. We further
held that multiple drug sales to undercover agents may be counted as separate
convictions so long as the defendant “had a meaningful opportunity to cease his
illegal conduct.” Id. at 1220. The district court held that Harris had the requisite
meaningful opportunity between his offenses, and he does not argue to the contrary
counsel filed the direct appeal before receiving a full trial transcript. But he does not
explain how obtaining the full trial transcript before filing would have changed the
outcome.
3
Harris also argued below that his trial counsel was ineffective for failing to
object to ACCA application. But, as the district court noted, Harris’ trial counsel did
object to Harris’ classification as an armed career criminal, and the trial court
rejected the very argument Harris made in his § 2255 motion.
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in his request for a COA. Thus, he has not made a substantial showing that appellate
counsel was ineffective for failing to challenge the sentencing calculation on direct
appeal.
Finally, Harris argues the district court improperly failed to order his trial or
appellate counsel to respond to allegations raised in Harris’ sworn affidavit. He
contends that absent a response, his allegations must be deemed admitted under Fed.
R. Civ. P. 36. Even if we were to apply Rule 36 to this § 2255 proceeding, see
§ 2255 Rule 12, and construe Harris’ affidavit as a request for admission, Harris’
argument fails because the district court did consider a responsive affidavit from
Harris’ trial counsel. Moreover, Harris does not identify what sworn statements the
district court allegedly discredited. Thus, Harris has not made a substantial showing
that he was denied a constitutional right.
III
We DENY a COA and DISMISS the appeal. Harris’ motion to proceed in
forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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