United States District Court, S.D. Illinois
SUSAN L. HARRIS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
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.
Underlying Criminal Case
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.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.
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.
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. Id. at 21.
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).
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.).
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).
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 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.
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,
§ 2255 Petition
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).
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