United States v. Harber

UNITED STATES OF AMERICA v. JAMES STACY HARBER (01)

No. 6:16-cr-129-01-01

United States District Court, W.D. Louisiana, Lake Charles Division

August 6, 2021

CAROL B. WHITEHURST, MAGISTRATE JUDGE.

RULING AND ORDER

DEE D DRELL, JUDGE

Before the court is a motion to vacate sentence filed, pro seby defendant James Stacy Harber (“Harber” or “Defendant”). (Doc. 137). For the following reasons, the motion is DENIED.

I. BACKGROUND

According to investigative reports, between 2010 and 2011, Harber lived in Ohio and engaged in a distanced sexual relationship via Skype and text messaging with codefendent Angela Head (“Head”). (PSR ¶ 14). The relationship expanded to include sexting with Head's minor children who at the time were ages thirteen (female), eleven (female, Victim No. 1 of PSR “VI”), ten (female, Victim No. 2 of PSR “VI”), and eight (male, Victim No. 3 of PSR “V3”). Further, Harber created screen captures via Skype of the three younger children in sexually explicit poses. (PSR ¶¶ 15-16). In 2013, Harber moved to Abbeville, Louisiana. (PSR ¶ 17). At an unknown time, VI and V2 moved in with Harber and V3 would spend the weekends with Harber. During this time, Harber engaged in sexual acts with the victims and regularly took photographs of the acts with his cell phone. (PSR ¶¶ 13, 17).

On April 26, 2016, a search warrant to search Harber's residence was obtained by the Abbeville Police Department (“APD") after VI verified that Harber was having sexual intercourse with VI and photographing the acts. (PSR ¶ 11). The APD searched the home and seized digital media storage devices. Id. Within the same day, the APD obtained a search warrant for the digital media stored on the storage devices. Id. Forensics identified on Harber's computer and cell phone numerous child pornography images and videos obtained from the internet including depictions of adult men engaging in sexually explicit conduct with young, prepubescent, children. Doc. 66-2 pp 3-4. On Harber's cell phone, forensics discovered numerous sexually explicit images of VI and V2 before and after forced vaginal and anal intercourse and of V3 before and after anal intercourse. (PSR ¶ 13; Doc. 107 p 28).

Harber was indicted on one count of conspiracy to produce child pornography (count 1), eight counts of production of child pornography (counts 2-9), and one count of possession of child pornography (count 10). (Doc. 1). Harber retained Michael Adams Fiser as counsel. Pursuant to a plea agreement, Harber plead guilty to three counts of production of child pornography (counts 7-9) and the one count of possession of child pornography (count 10). We sentenced him to total of seventy years incarceration on all counts of conviction. (Doc. 93). On appeal, Harber claimed a number of factors should have weighed in favor of a less than seventy year sentence or alternatively that the individual sentences should have been imposed concurrently. The Fifth Circuit disagreed and affirmed his sentence. United States V, Harber, 740 Fed.Appx. 88 (5th Cir. 2018)

Harber now moves to vacate his sentence pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. While his motion is divided into four grounds there . are numerous vague, but claimed, allegations of deficient performance throughout. For the purpose of this analysis, we divide Harber's claims into those affecting the voluntariness of his plea and those affecting his sentence.

II. LAW

There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence! (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Cates, 952 F.2d 149, 151 (5th Cir.), cert, den., 504 U.S. 962 (1992). The scope of relief under § 2255 is consistent with that of the writ of habeas corpus. See Cates, 952 F.2d at 151; see also United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996).

Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. Nonconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding. See United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992); United States v. Ressler, 54 F.3d 257, 259 (5th Cir. 1995). Moreover, it is settled in this circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 motions. See United States v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert, den., 476 U.S. 1118 (1986); United States v. Fields, 761 F.3d 443, 466, 482 (5th Cir. 2014), cert, den., 135 S.Ct. 2803 (U.S. 2015); United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994).

A collateral challenge may not do as a substitute for an appeal. United States v. Frady, 465 U.S. 152, 165 (1982). After conviction and exhaustion or waiver of any right to appeal, the federal courts are entitled to presume that the defendant stands fairly and finally convicted. See United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991), cert, den., 502 U.S. 1076 (1992). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice or that he is actually innocent.” Bouslev v. United States, 523 U.S. 614, 622, (1998) (internal citations omitted). A claim may not be reviewed under § 2255 absent a showing of cause and prejudice or actual innocence. United States v. Cooper, 548 Fed.Appx. 114, 116 (5th Cir. 2013); United States v. Hicks, 945 F.2d 107, 108 (5th Cir. 1991).

In a motion to vacate sentence for ineffective assistance of counsel, the defendant has the burden of proof. See United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999) (citing Clark v. Collins, 19 F.3d 959, 964 (5th Cir. 1994), cert, den., 513 U.S. 966 (1994)). To prevail on his motion, Defendant must satisfy the twopronged test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984): (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Absent exceptional circumstances, establishment of ineffective assistance of counsel satisfies cause and prejudice. United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995).

Regarding the first prong of Strickland, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time. See Dowthittv. Johnson, 230 F.3d 733, 743 (5th Cir. 2000), cert, den., 532 U.S. 915 (2001) (citing Strickland, 466 U.S. at 689). “Judicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 669. The court must consider the totality of the circumstances. Murray v. Maggio, 736 F.2d 279, 281 (5th Cir, 1984). “However, because it is all too easy to second-guess an unsuccessful counsel's defense with the benefit of hindsight, in making that inquiry ‘a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.' ” Murray v. Maggio, 736 F, 2d 279, 281 (5th Cir. 1984) (citing Strickland, 466 U.S. at 669). The court must be particularly wary of arguments that essentially come down to a matter of degrees, such as whether counsel investigated enough or presented enough mitigating evidence. Those questions are even less susceptible to judicial second-guessing. See Dowthitt, 230 F, 3d at 743 (citing Kitchens v, Johnson, 190 F.3d 698, 703 (5th Cir, 1999)), Regarding the second prong of Strickland, a defendant is prejudiced if there is a reasonable probability that, “but for counsel's unprofessional errors, the results of the proceedings would have been different.” Strickland, 466 U.S. at 689. To make that determination, the court must examine the proceedings as a whole, giving due consideration to the weight of the evidence supporting the result and evaluating the alleged failings of counsel in that total setting. The court does not assess any alleged error in isolation. See United States v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014) (“In assessing prejudice, we consider the totality of the circumstances...”).

However “conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.” Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (citing Ross v, Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)). “One claiming ineffective assistance of counsel must identify specific acts or omissions,' general statements and conclusionary charges will not suffice.” Knighton v, Maggio, 740 F.2d 1344, 1349 (5th Cir. 1984) cert, denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 241 (1984). “In the absence of a specific showing of how [the] alleged errors and omissions were constitutionally deficient, and how they prejudiced [the defendant's] right to a fair trial, ” a court will find a claim of ineffective assistance of counsel to be without merit. Barnard v. Collins, 958 F.2d 634, 642 (5th Cir. 1992). Further, counsel is not ineffective for failing to raise a meritless claim. United States v. Gibson, 55 f.3d 173, 179 (5th Cir. 1995) (“Counsel is not required by the ...