United States District Court, C.D. Illinois, Urbana Division
MICHAEL P. MCCUSKEY, District Judge.
On June 21, 2013, Petitioner, Terrill Harris, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1). On July 22, 2013, the Government filed its Response to Petitioner's Motion (#3). On July 29, 2013, Petitioner filed a pro se Motion to Amend § 2255 Petition (#4), and sought to add additional claims. On October 1, 2013, Petitioner filed a Motion to Expand Record (#5).
This court has carefully and thoroughly reviewed the arguments of the parties and the documents provided. This court has also reviewed the record in Petitioner's criminal case. Following this careful consideration, this court rules as follows: (1) Petitioner's pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1) is DENIED; (2) Petitioner's pro se Motion to Amend § 2255 Petition (#4) is DENIED as untimely; and (3) Petitioner's Motion to Expand Record (#5) is MOOT.
On February 24, 2009, Illinois State Trooper Chris Owen stopped Petitioner for speeding in the Central District of Illinois. During the stop and subsequent search of Petitioner's car, Owen found a sophisticated hidden compartment in the dashboard that contained a loaded.357 revolver. Petitioner, who was the only person in the car, admitted the gun was his. Owen arrested Petitioner and impounded his car. Two days later, Owen found a second sophisticated hidden compartment behind the rear seat that contained approximately 10 kilograms of cocaine. On February 27, 2009, law enforcement officers arrested Petitioner (who had been released on bond) for possession of the cocaine. After initially providing false information, Petitioner admitted to Akil Smith, a task force officer with the Drug Enforcement Administration, that he obtained the cocaine by "ripping off" a Mexican drug trafficker in Phoenix, Arizona, on February 18, 2009. Petitioner said he pulled the gun and demanded the drugs, and when the Mexican male hesitated, Petitioner hit him in the head with the gun and stole the drugs. Petitioner further admitted that he had previously stolen 50 pounds of marijuana and that he had been stealing drugs and money from drug dealers for six years. Petitioner said that he had the hidden compartments installed in his car three years earlier for the purpose of transporting guns and drugs.
In Case No. 09-CR-20027, Petitioner was charged by indictment with possession of five kilograms or more of cocaine with the intent to distribute it (Count 1) and carrying a firearm during a drug trafficking crime (Count 2). John C. Taylor of the Federal Public Defender's office was appointed to represent him.
On September 30, 2009, Petitioner, through his counsel, filed a Motion to Suppress Evidence. Petitioner argued that all incriminating evidence should be suppressed because: (1) the initial traffic stop was invalid and in violation of the Fourth Amendment; (2) Petitioner did not consent to a search of his car so the subsequent search was a violation of the Fourth Amendment; and (3) the "air sniff" of the car by the K-9 dog did not result in a positive "hit" so the subsequent search of the car was in violation of the Fourth Amendment. Petitioner was later allowed to add an allegation that the searches of the two hidden compartments in the car were without probable cause.
An evidentiary hearing was held on December 21, 2009. A transcript of the hearing was filed, and the parties filed written argument with the court. In Petitioner's Brief, he conceded that the initial stop was valid and that voluntary consent to search the vehicle was given by Petitioner. Petitioner also conceded that he was properly advised of his rights under Miranda. Petitioner continued to challenge the search of the hidden compartments in his vehicle. On April 30, 2010, this court entered an Opinion and, following careful consideration of the evidence and arguments presented, denied the Motion to Suppress Evidence. This court found that the search of the first hidden compartment was based upon probable cause and that the search of the second hidden compartment in the vehicle was based upon probable cause and proper.
A jury trial began on August 16, 2010. On August 17, 2010, the jury returned a verdict finding Petitioner guilty of both charges against him. A sentencing hearing was held on February 28, 2011. This court concluded that the Government had not proven by a preponderance of the evidence that Petitioner brandished the firearm. Therefore, this court found that Petitioner faced a mandatory minimum consecutive sentence of five years to life imprisonment of Count 2, instead of seven years to life imprisonment. This court then sentenced Petitioner to a term of 181 months in the Federal Bureau of Prisons, consisting of 121 months on Count 1 (one month above the mandatory minimum of 120 months) and the mandatory minimum 60-month consecutive sentence on Count 2. Petitioner filed a Notice of Appeal.
On appeal, Petitioner's appellate counsel moved to withdraw because the appeal was frivolous. Petitioner filed a response, claiming that (1) the initial search of his car was unconstitutional; and (2) that his trial counsel provided ineffective assistance by not allowing him to testify and presenting no evidence at trial. On March 21, 2012, the Seventh Circuit Court of Appeals entered an Order granting Petitioner's counsel's motion to withdraw and dismissing the appeal. The Seventh Circuit considered the evidence presented and concluded that it would have been "frivolous for [Petitioner] to mount a constitutional challenge to the initial search." The Seventh Circuit also stated that Petitioner failed "to explain how he was he was prevented from testifying or what evidence was available to offer at trial." The Seventh Circuit's mandate was issued on April 12, 2012. Petitioner did not filed a petition for a writ of certiorari with the United States Supreme Court.
On June 21, 2013, Petitioner filed his Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (#1). In his Motion, Petitioner raised three claims: (1) he received ineffective assistance of counsel during the suppression hearing because his counsel failed to properly present an argument that he was illegally seized during the traffic stop in violation of his Fourth Amendment rights; (2) he received ineffective assistance of counsel when his counsel failed to object to the "literal" amendment to Count 2 of his indictment; and (3) the decision of the United States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013) applies retroactively and requires this court to vacate his conviction under 18 U.S.C. § 924(c).
On July 22, 2013, the Government filed its Response (#3). The Government argued that Petitioner's first two claims fail on the merits and his third claim fails because Alleyne is not retroactive on collateral review and, in any case, does not apply to Petitioner's case.
On July 29, 2013, Petitioner filed a Motion to Amend § 2255 Petition (#4). Petitioner asked this court to allow him to amend his Motion (#1) to add claims four and five. Petitioner argued in claim four that Count 2 of his indictment is fatally defective. In claim five, Petitioner argued that his counsel was ineffective for failing to argue that all of his statements must be suppressed. On October 1, 2013, Petitioner filed a Motion to Expand Record (#5). Petitioner first asked this court to order the Government to respond to the merits ...