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Harriss v. United States

United States District Court, S.D. Illinois

November 20, 2017

SUSAN L. HARRIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Susan L. Harris's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). For the reasons set forth below, the motion is denied.

         Background

         I. Underlying Criminal Case

         In 2011, Petitioner Susan L. Harris and her co-defendant, Ashley Drummond, stole various identities and used them to open credit card accounts in Madison County and St. Clair County. United States v. Harris, SDIL Case No. 3:12-CR-30226, Doc. 80.[1]Drummond worked at Anderson Hospital, where she was able to acquire the personal identifying information of elderly patients from hospital charts and computer records. Id. at 4. Harris and Drummond would then use the elderly patients' personal identifying information to open credit card accounts in the victims' names. Id. At least eleven elderly patients were defrauded of approximately $10, 190.74.

         On December 7, 2011, Drummond was arrested for the theft of a patient's credit card after being caught on surveillance footage. Id. at 4. Following Drummond's arrest, federal investigators learned of Harris's involvement. Id. at 5. On July 19, 2012, Harris was indicted on two counts: Count I-Conspiracy to Commit Mail Fraud, in violation of 18 U.S.C. § 1341 and 18 U.S.C. § 1349, and Count III-Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A. SDIL Case No. 3:12-CR-30226, Doc. 1. Assistant Federal Public Defender Daniel G. Cronin was appointed to represent Harris on July 30, 2012. Id. at Doc. 16.

         On the day Harris was released on bond, she submitted to a drug test, which turned up positive for marijuana. SDIL Case No. 3:12-CR-30226, Doc. 80. On July 29, 2012, Harris was referred to Chestnut Health Services in Granite City for mental health and substance abuse treatment. Harris had a troubled background and previously had been diagnosed with bipolar disorder, attention deficit hyperactivity disorder, post-traumatic stress disorder, anger management issues, and depression. Id. at Doc. 80, pp. 20-21. On September 5, 2012, Harris underwent an integrated mental health and substance abuse assessment at Chestnut Health. At the conclusion of the assessment, it was recommended that Harris be monitored for changes in cognition, affect, and behavior; however, it was also recommended that treatment be terminated as there was no finding of addiction or an Axis I diagnosis.[2] Id. at 21.

         Defense counsel testified in his affidavit that he was aware of Harris's troubled past and mental health issues and, for those reasons, early in the case he had discussed retaining a psychologist for possible sentencing mitigation purposes (Doc. 6-1, ¶ 4). Prior to November 22, 2012, counsel had nine meetings with Harris (Id.). At each meeting, Harris asked pertinent questions and gave detailed responses to counsel's questions (Id.). Thus, counsel had no doubts as to her competency and no basis for requesting a competency exam (Id.). Harris does not rebut these facts. Counsel further testified that on September 7, 2012, he sent Harris a letter detailing her case and giving her a sentencing chart that reflected sentencing guidelines and a possible Rule 35 reduction. (Id.). Harris denies receiving this letter (Doc. 7).

         On November 22, 2012, Harris was hospitalized at St. Elizabeth's Hospital after it was suspected that she intentionally overdosed on Xanax. SDIL Case No. 3:12-CR-30226, Doc. 80 at p. 21. Counsel states that he was concerned about this incident, reviewed the police report and medical records, and discussed the incident with Harris (Doc. 6-1, ¶5). While the medical records indicated diagnoses of depressive disorder, posttraumatic stress disorder, personality disorder, chronic mental illness, and significant character pathology, her physician concluded she was not a candidate for involuntary admission because she was demonstrating alertness, impulse control, good judgment, and logical thought after release (Doc. 6-1, at 2). Counsel attests that his own impression of Harris after her overdose was consistent with those findings (Id.).

         On December 3, 2012, Magistrate Judge Stephen C. Williams held a change of plea hearing, but Harris abruptly aborted her plea and decided to go to trial. SDIL Case No. 3:12-CR-30226, Doc. 53. Harris states that she stumbled during her “attempted” guilty plea, at which point counsel told her she was embarrassing him for “being so high” and now she had to go to trial (Doc. 1). Counsel testified that he was concerned Harris was over-medicated on valid prescription medication or possibly under the influence of illegal drugs that day, but did not view that possibility as calling her competency into question. He denies telling Harris he was embarrassed by her or that she had to go to trial (Doc. 6-1, ¶ 6).

         On December 5, 2012, a jury convicted Harris on both counts. Case No. 3:12-CR-30226, Docs. 59, 61. Defense counsel filed a sentencing memorandum arguing that a sentence between 36 and 42 months would “fully take into account Susan Harris's tragic childhood…” Id. at Doc. 82. On March 25, 2013, the Honorable G. Patrick Murphy[3] sentenced Harris to 24 months' imprisonment on each count, to run consecutively. Harris also was required to pay $7, 648.97 in restitution. Id. at Doc. 85. The court also stated that Harris “might benefit from a program of mental health treatment, ” including a psychiatric evaluation, in order to determine “why someone that's of reasonable intelligence and with some job skills would just for almost all your adult life be involved in some scam, one after another . . . [and] would be assaultive, as you have shown yourself to be.” Id. at Doc. 99, p. 22.

         Harris appealed her conviction to the Seventh Circuit Court of Appeals on April 5, 2013, and initially was represented by defense counsel. Id. at Doc. 88. After defense counsel declared a “conflict of interest, ” Harris was appointed new counsel on appeal. Id. at Docs. 106, 117. Harris alleged she was denied an accurate and reliable jury determination because the district court empaneled an anonymous jury. Id. at Doc. 133-2, at 4. The Seventh Circuit Court of Appeals rejected Harris's argument and affirmed her conviction and sentence on September 9, 2014. Id. at Docs. 133-1, 133-2. According to the website maintained by the Bureau of Prisons, Harris was released from the custody on September 13, 2016.[4]

         II. § 2255 Petition

         Harris filed her pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on November 26, 2014 (Doc. 1). The Court ruled that Harris's petition survived preliminary review under Rule 4 of the Rules Governing Section 2255 Proceedings and directed the Government to respond by July 15, 2015. Harris was directed to reply by July 29, 2015 (Doc. 5). On July 15, 2015, the government responded to the motion (Doc. 6), and approximately two weeks later, Harris replied to government's response (Doc. 7).

         In her petition, Harris asks the Court to reduce her sentence by twelve months because her counsel was constitutionally ineffective. Specifically, Harris claims counsel:

(1) failed to investigate competency or request a competency hearing when competency was at issue;
(2) did not act in Harris's best interest by not ordering a ...

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