Harman v. United States, CASE NO. 3:17-CR-325

NICOLAUS HARMAN, Petitioner v. UNITED STATES OF AMERICA, Respondent

CASE NO. 3:17-CR-325

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

April 26, 2021

(JUDGE MANNION)

MEMORANDUM

Pending before the court is petitioner Nicolaus Harman's ("Harman") Motion to Vacate, Set Aside, or Correct his aggregate 190-month sentence of imprisonment imposed on February 15, 2019. (Doc. 49). Harman is currently serving his prison sentence at USP Allenwood in White Deer, Pennsylvania. Harman's petition is filed pursuant to 28 U.S.C. §2255 and is partially based upon the Supreme Court's decision in United States v. Davis, — U.S. —, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019) (holding that the residual clause of 18 U.S.C. §924(c)(3)(B) is unconstitutionally vague and violated the Due Process Clause). Harman claims that his conviction and consecutive 120 month's imprisonment sentence on Count 4, for a violation of 18 U.S.C. §924(c), must be vacated because his predicate offense of conspiracy to commit Hobbs Act robbery can no longer be considered a crime of violence.

As relief, Harman requests the court vacate his conviction and sentence for a violation of §924(c) arguing that it violates his due process rights based on Davis. For the following reasons, Harman's petition, (Doc. 51), will be Denied in Part. Despite it arguably being untimely filed, because his Davis claim is clear, it will be Denied based upon a merits analysis. However, the court will conduct an evidentiary hearing regarding the timeliness of Harman's ineffective assistance of counsel claim, and if timely, whether his trial counsel failed to consult with him about an appeal and failed to file an appeal as he directed.

I. BACKGROUND¹

On October 24, 2017, a grand jury returned an indictment charging Harman with: Count 1, conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. §1951(a); Count 2, Hobbs Act robbery in violation of 18 U.S.C. §1951(a) and included Aiding and Abetting, in violation of 18 U.S.C. §2, and Pinkerton liability; Count 3, a drug trafficking conspiracy in violation of Title21, U.S.C. §846; Count 4, possession and discharge of a firearm in furtherance of the violent crimes, i.e., conspiracy to interfere with commerce by robbery and interference with commerce by robbery, and a drug trafficking crime, as set forth in Counts 1, 2, and 3, in violation of 18 U.S.C. §924(c); and Count 5 possession of a firearm by a convicted felon in violation of 18 U.S.C. §922(g). (Doc. 1).

On August 23, 2018, pursuant to a plea agreement, Harman pled guilty to Counts 1 and 4 of the Indictment. (Docs. 37, 39, 49). Specifically, Count 1 charged that from April 15, 2017 to April 18, 2017, Harman did knowingly and willfully conspire with others to obstruct, delay, and affect interstate commerce and the movement of articles and commodities in commerce by robbery, and to commit and threaten physical violence to victim A.B. in furtherance of a plan and purpose to obstruct, delay, and affect commerce and the movement of commerce by robbery, in violation of 18 U.S.C. §1951(a). Count 4 charged that on April 16, 2017, Harman did knowingly possess, use, carry, brandish and discharge a firearm [i.e., a Ruger P-85 9mm handgun], in furtherance of, and during and in relation to, a violent crime, that is, conspiracy to interfere with commerce by robbery, as charged in Count 1, and interference with commerce by robbery, as charged in Count 2, and in furtherance of, and during and in relation to, a drug trafficking crime, that is the conspiracy to distribute and possess with intent to distributecocaine, a Schedule II controlled substance, as charged in Count 3, a violation of 18 U.S.C. §924(c). (Doc. 1).

After Harman's guilty plea, the court directed that a presentence investigation report ("PSR") be prepared. The PSR was filed on January 30, 2019. (Doc. 43).

The plea agreement, (Doc. 37), indicated that the charge in Count 1 was "conspiracy to commit robbery" and, that the charge in Count 4 was "possession, use, carry, brandishing, and discharge of a firearm in furtherance of and during and in relation to a crime of violence." (Doc. 37 at 1-2). Also, in the agreement, the parties agreed that with respect to the offense charged in Count 4, "the defendant did carry, use, brandish, and discharge a firearm during and in relation to a crime of violence." (Doc. 37 at 10).

On February 15, 2019, Harman was sentenced to a term of imprisonment of 70 months on Count 1 and a term of 120 months on Count 4, to run consecutively, followed by a 4-year term of supervised release. Counts 2, 3 and 5 were dismissed on motion of the government. (Doc. 49).

Harman did not file a notice of appeal with the Third Circuit regarding his judgment of sentence.² Harman is currently serving his aggregate 190-months' prison sentence at USP-Allenwood.

On July 24, 2020, Harman's pro se petition, pursuant to 28 U.S.C. §2255, to vacate his conviction under §924(c) based on the Davis case, and a brief in support were filed with the court.³ (Docs. 51 & 52). On July 24, 2020, pursuant to this court's Standing Order 19-08, Harman was appointed counsel from the Federal Public Defender Office, pursuant to the Criminal Justice Act, 18 U.S.C. §3006A, to represent him and to assist him with his motion to vacate predicated on the Davis case. (Doc. 53). On September 1, 2020, Harman's counsel filed a supplemental motion to correct sentence under 28 U.S.C. §2255. (Doc. 54). Specifically, Harman seeks the court to set aside his conviction and 120-month sentence on Count 4 of the Indictment, for a violation of §924(c), alleging that his predicate offense is no longer a crime of violence.

The court directed the government to respond and, on January 21, 2021, the government timely filed its brief in opposition to Harman's motionand Exhibits. (Docs. 56 & 57). On February 4, 2021, the court appointed new CJA counsel to represent Harman. (Doc. 60). On March 16, 2021, after being granted an extension of time, Harman filed his reply brief. (Doc. 64). On March 31, 2021, the transcript from Harman's August 23, 2018 guilty plea hearing was filed.⁴ (Doc. 65).

Having been fully briefed, Harman's motion is now ripe for review.

II. STANDARD

When a district court judge imposes a sentence on a defendant who believes "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, [the defendant] may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. §2255, ¶1; see United States v. Eakman, 378 F.3d 294, 297-98 (3d Cir. 2004).

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearingthereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. §2255(b).

A §2255 motion "is addressed to the sound discretion of the district court." United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). "[A] motion under 28 U.S.C. §2255 is the proper procedure for a federal prisoner to raise a collateral attack on his or her federal sentence for any error that occurred at or prior to sentencing." Paulino v. U.S., 2010 WL 2545547, *2 (W.D. Pa. June 21, 2010) (citations omitted). "In order to prevail on a §2255 motion to vacate, set aside, or correct a sentence, a Petitioner must show '(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'" U.S. v. Bates, 2008 WL 80048, *2 (M.D. Pa. Jan. 7, 2008) (quoting Mallet v. U.S., 334 F.3d 491, 496-97 (6^th Cir. 2003)). "The petitioner bears the burden of proof under §2255 and must demonstrate his right to relief by a preponderance of the evidence." U.S. v. Ayers, 938 F.Supp.2d 108, 112 (D. D.C. 2013) (citation omitted).

Additionally, "Section 2255 does not afford a remedy for all errors that may have been made at trial or during sentencing", "[r]ather, Section 2255 is implicated only when the alleged error raises 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Williams v. UnitedStates, 2016 WL 6892375, *2 (M.D. Pa. Nov. 22, 2016) (internal citations omitted).

"If the court determines that the sentence was not authorized by law, was unconstitutional, or is otherwise open to collateral attack, the court may vacate the judgment, resentence the prisoner, or grant the prisoner a new trial as appropriate." United States v. Milan, 2020 WL 6682535, *2 (M.D. Pa. Nov. 12, 2020) (citing 28 U.S.C. §2255(b)).

III. DISCUSSION

This court has jurisdiction over Harman's motion under §2255 pursuant to 28 U.S.C. §§1331 and 2241.

At the outset, there is a dispute over whether Harman's §2255 motion was filed within one year of the date on which the Davis decision was issued, (June 24, 2019), and/or the date of his sentence (February 15, 2019) and therefore whether it is timely. See Milan, 2020 WL 6682535, *2 ("A federal prisoner may ... file a §2255 motion within one year from '[t]he date on which the right asserted was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.'") (citing 28 U.S.C. §2255(f)(3)). No doubt that Harman's initial pro se §2255 motion was actually filed with the court on July 24, 2020, but he claims that under the prisoner mailbox rule apro se prisoner's motion is considered filed on the date the prisoner delivers it to prison authorities for mailing not the date it is docketed in court. Harman contends that he signed his motion on "Feb. 15, 2020", and that is...