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United States v. Harris

United States District Court, D. Minnesota

January 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DEMETRIUS CARVON HARRIS, Defendant.

          Kimberly A. Svendsen, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, for plaintiff.

          Demetrius Carvon Harris, Reg. No. 12774-041, FCI Safford, pro se defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM Chief Judge

         On March 15, 2007, Defendant Demetrius Harris pled guilty to two counts: conspiracy to possess with intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, as well as possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). On August 6, 2007, the Court sentenced Harris to 180 months of imprisonment - the minimum sentence required by the applicable statutes at the time - followed by five years of supervised release.[1] Harris moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

         Section 2255 permits a prisoner to move the court that sentenced him to “vacate, set aside or correct the sentence” on the grounds 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.” 28 U.S.C. § 2255(a). “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, if uncorrected, would result in a complete miscarriage of justice.” Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).

         Harris argues that Johnson v. United States, 135 S.Ct. 2551 (2015), provides a basis for this court to correct his sentence. In Johnson, the Supreme Court considered the “residual clause” in the definition of “violent felony” in the Armed Career Criminal Act, which defined a violent felony to include a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court held the residual clause was unconstitutionally vague. Johnson, 135 S.Ct. at 2557-58 (interpreting § 924(e)(2)(B)(ii)).

         In Harris's case, the Court imposed a 120-month mandatory sentence under § 841(b)(1)(A) and a consecutive 60-month mandatory minimum sentence under § 924(c)(1)(A). Section 924(c)(1)(A) increases penalties for two types of crimes when the defendant possessed a firearm at the time of the offense: “drug trafficking crimes” and “crimes of violence.” In Johnson, the Supreme Court dealt with the definition of “violent felony” under § 924(e)(2), but Harris's sentence was based not on a “violent felony” or even a “crime of violence, ”[2] but rather, on a drug trafficking crime. Therefore, Johnson did not disturb the validity of any statute upon which Harris's sentence rests. Because Johnson does not entitle Harris to any relief under § 2255, his motion will be denied.

         The Court notes that on December 19, 2016, President Barack Obama issued an Executive Grant of Clemency for Harris commuting his term of imprisonment to expire on June 17, 2017, after which he will serve his five-year term of supervised release with the conditions ordered by the Court.

         Certificate of Appealability

         The Court may grant a Certificate of Appealability only where the movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The movant must show that “the issues are debatable among reasonable jurists, that a court could resolve the issues differently, or that the issues deserve further proceedings.” Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). For purposes of appeal under 28 U.S.C. § 2253, the Court finds that Harris has not shown that reasonable jurists would find the issues raised in Harris's § 2255 motion debatable, that some other court would resolve the issues differently, or that the issues deserve further proceedings. The Court therefore declines to grant a Certificate of Appealability in this case.

         ORDER

         Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:

1. Demetrius Carvon Harris's Motion for to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. ยง 2255 ...

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