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Jerome Harris v. United States of America

July 20, 2011

JEROME HARRIS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Jerome Harris' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Harris' Section 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

FACTUAL BACKGROUND

On November 9, 2006, a federal grand jury returned a two-count indictment against Harris charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count One) and possession with the intent to distribute a mixture containing cocaine base in the form of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count Two). On July 17, 2007, the Court granted the government's motion to amend the indictment to correct a non-substantive error concerning the serial number for one of the firearms charged to have been in Harris' possession.

Harris' jury trial began on August 7, 2007 and ended on August 8, 2007. At trial, Chicago Police Officers Zach Rubald, Scott Leck, and Sergeant Eric Olson, who were on patrol in the Englewood neighborhood of Chicago, testified that a concerned citizen approached them about a man who was selling drugs in a nearby alley. After receiving this tip, the officers, who were dressed in uniform, drove in an unmarked police car to the south alley of the 900 block of West 59th Street. Once they arrived at the alley, the officers observed Harris throw a clear, plastic sandwich bag on the ground. Thereafter, Harris attempted to walk away. The officers picked up the bag and inspected it. The bag contained twelve individual plastic bags each containing a white, rock-like substance. The police officers then arrested Harris, read him his Miranda warnings, and searched him.

Subsequently, the police officers interviewed Harris, who was on parole at that time. Harris told them that he knew of an apartment on West 59th Street where firearms and drugs were stored. The police officers drove to the address, searched for the gun, and found an inoperable .32 caliber revolver. Harris also informed Officer Leck that he had stored two firearms at his girlfriend Porsche Andrews' house on South Woodlawn Avenue in Chicago. The police officers then drove to his girlfriend's address and asked Regina Walker, the lease holder and Andrews' grandmother, for consent to search the property. After Walker gave her written consent, the police officers searched the home. At first the police could not find the firearms, so Officer Leck entered the residence with Harris who helped him locate a .40 caliber semi-automatic handgun and a loaded .45 caliber pistol in the residence.

In addition to the arresting officers' testimony, the government called Regina Walker at trial. She testified that the guns found in her home did not belong to her or anyone else in her household. Andrews testified at trial that the guns found in her room did not belong to her and that Harris had been in her room on the morning of his arrest and told her he had left something in her room. Andrews further testified that she had been dating Harris for the two years leading up to his arrest and that he was a drug dealer. She also testified that on at least five occasions she personally observed Harris receive money from multiple individuals in exchange for plastic bags containing a lumpy, off-white form of cocaine. Andrews stated that Harris would give her significant sums of cash -- from $100 to $400 -- whenever she asked for it. Further, Andrews testified that Harris made statements about his gun possession and that he "would brag about what he would do to people and the weapons he had ... [and] how he'd kill somebody or how he'd shoot them."

At trial, Sergeant Olson testified about certain post-arrest statements Harris made regarding his gun possession:

A: I asked Mr. Harris if -- I conducted a general questioning regarding gang and drug activity and asked Mr. Harris if -- he could provide any information.

Q: Did he agree to do that?

A: Yes, he did.

Q: What did he tell you?

A: He initially directed us to a location at West 59th Street on the Second Floor, where he related there were a couple of guns up in the bedroom of the apartment.... In talking to Mr. Harris in the station, I asked Mr. Harris, again, about gang information in the Englewood community.

Q: And what did he say?

A: Mr. Harris related to me, in essence, that he was having a dispute with a group of individuals from approximately 59th and Sangamon, I believe it was; that that was why he had the firearms; but, he moved them out of the Englewood community because, as he quoted, it was too hot and there were too many police out there.

(06 CR 0828, R. 103, Tr. at 166-67.)

At trial, the government also called Robert Coleman, a lieutenant with the Will County Sheriff's Police, who testified as an expert in narcotics trafficking. Coleman specifically testified that the drug inside the plastic bag that Harris had dropped in the alley was crack cocaine in twelve dime bags. Further, the parties stipulated that Harris had been convicted of a felony prior to his arrest on April 2, 2006.

On August 8, 2007, the jury found Harris guilty on both counts of the indictment. On December 6, 2007, the Court sentenced Harris to 120 months imprisonment on Count One and 210 months imprisonment on Count Two to run concurrently.

Harris appealed his conviction to the United States Court of Appeals for the Seventh Circuit arguing that the Court erred in admitting (1) Andrews' testimony about Harris' prior drug transactions; (2) Andrews' admissions about his gun possession; and (3) his post-arrest statement made to the arresting officers. On November 25, 2009, the Seventh Circuit affirmed Harris' conviction. See United States v. Harris, 587 F.3d 861 (7th Cir. 2009).

LEGAL STANDARD

"[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Under Section 2255, relief "is available only when the 'sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). A Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (Section 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal.") (citation omitted). As such, if a Section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal. See Sandoval v. United States, 574 F.3d 847, 850-51 (7th Cir. 2009); Torzala, 545 F.3d at ...


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