United States District Court, E.D. Wisconsin
CONSTRUING THE DEFENDANT'S LETTER REQUEST AS A MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C.
§2255 (DKT. NO. 162), DIRECTING CLERK OF COURT TO OPEN A
SEPARATE CIVIL 28 U.S.C. §2255 CASE WITH THE MOTION AND
DISMISSING AS A SECOND OR SUCCESSIVE §2255
PAMELA PEPPER, United States District Judge
defendant has written a letter asking the court to correct
his PSR, and to appoint him counsel to file a
Johnson claim. Dkt. No. 162. The defendant argues
that his Presentence Investigation Report is wrong and that
his 120-month mandatory minimum sentence was based on a
Rudolph T. Randa sentenced the defendant nine and a half
years ago, on November 21, 2008. Dkt. No. 112. The Seventh
Circuit affirmed the conviction and sentence on February 3,
2010. Dkt. No. 132. Since then, the defendant has filed
multiple §2255 motions and motions to reconsider,
resulting in seven separate lawsuits raising the same claim.
Harris v. United States, Nos. 10-cv-445 (E.D. Wis.);
10-cv-1096 (E.D. Wis.); 11-cv-203 (E.D. Wis.); 11-cv-269
(E.D. Wis.); 11-cv-947 (E.D. Wis.); 13-cv-916 (E.D. Wis.);
16-cv-409 (E.D. Wis.). In each case, the defendant argued
that his sentence had been miscalculated because his prior
conviction in State of Arkansas v. David Wayne
Harris, No. 02-CR-704 had been sealed or dismissed.
Randa denied the defendant's first §2255 motion,
finding that even if the defendant was correct in arguing
that his Arkansas conviction was not valid, he had second
drug conviction which also triggered the mandatory minimum.
Harris v. United States, 10-cv-445-RTR at Dkt. No.
12 (E.D. Wis.). When the defendant filed the second motion,
Judge Randa determined that he lacked jurisdiction to rule on
it because the defendant had not applied for permission to
file a second or successive motion attacking the same
conviction and sentence as the first motion had attacked.
Harris v. United States, 11-cv-269 at Dkt. No. 2
(E.D. Wis.). The Seventh Circuit Court of Appeals affirmed,
and denied the defendant's requests for a certificate of
appealability. Id. at Dkt. No. 17. Judge Randa made
the same determination in the other motions the defendant
filed. The defendant's most recent letter is an attempt
to circumvent the prior orders of the district court; the
defendant knows he must ask the Seventh Circuit's
permission to file a successive petition.
August 19, 2008, a jury returned a guilty verdict as to count
two of the superseding indictment charging the defendant with
possession with intent to distribute 500 grams or more of
cocaine in violation of 21 U.S.C. §§841(a)(1) and
(b)(1)(B). United States v. Harris, No. 06-cr-164,
Dkt. No. 107. Judge Randa sentenced the defendant to a
120-month mandatory minimum sentence, which both parties
agreed was a sufficient sentence. Id. at Dkt. No.
111. The defendant filed a direct appeal, and the Seventh
Circuit Court of Appeals affirmed his conviction.
Id. at Dkt. No. 132; United States v.
Harris, 585 F.3d 394 (7th Cir. 2009).
months later, the defendant filed a motion to vacate under 28
U.S.C. §2255, arguing that (1) he was entitled to
resentencing because an Arkansas Circuit Court had issued an
order of nolle prosequi with respect to his 2003
conviction, and (2) his counsel had been ineffective during
the suppression hearing in failing to argue that a traffic
citation was a mistake of law. Dkt. No. 134; see also
Harris v. United States, No. 10-cv-445 (E.D. Wis.).
Judge Randa denied the motion, in part, because while the
120-month mandatory minimum was triggered by a prior drug
conviction, the Arkansas conviction was not the
defendant's only prior drug conviction. No. 06-CR-164,
Dkt No. 97; No. 10-cv-445, Dkt. No. 12 at 1. Even if the
defendant had been correct as to the Arkansas conviction,
Judge Randa found the other conviction sufficient to trigger
the mandatory minimum. Id. at 2. The Seventh Circuit
denied the defendant's request for a certificate of
appealability, finding no substantial showing of a denial of
a constitutional right. No. 10-cv-445, Dkt. No. 30.
defendant filed six more motions seeking reconsideration and
challenging his sentence in this district. Case. Nos.
10-cv-1096, 11-cv-203, 11-cv-269, 11-cv-947, 13-cv-916,
16-cv-409. Judge Randa denied each of these motions as a
second or successive petition requiring leave of the Seventh
Circuit. When dismissing No. 13-cv-916, Judge Randa warned
the defendant that the court would sanction the defendant
under Rule 11 of the Federal Rules of Civil Procedure if he
filed another successive motion without seeking the Seventh
Circuit's permission. No. 13-cv-916, Dkt. No. 2.
that warning, on December 21, 2015, the defendant filed a
motion for leave to file a successive §2255 with the
district court. No. 06-CR-164, Dkt. No. 147. Judge
Randa again denied the motion for lack of jurisdiction, as
well as the defendant's motion for recusal. Dkt. No. 150.
Judge Randa denied a subsequent motion for reconsideration,
clarifying that “if Harris is seeking leave to file a
successive motion under 28 U.S.C. §2255, this court
lacks jurisdiction to entertain such a motion. If, instead,
Harris is actually filing a substantive §2255 motion,
the court lacks jurisdiction because such a motion would be
second or successive. Either way, no jurisdiction.”
Dkt. No. 155.
months, the defendant filed another motion to vacate under
§2255, claiming, among other things, actual innocence.
No. 16-cv-409, Dkt. No. 1. Judge Randa dismissed that case
three weeks later for lack of subject matter jurisdiction.
Id., at Dkt. No. 3. The Seventh Circuit held that
the district court's dismissal was proper because the
defendant had not sought permission from the Seventh Circuit
to file a successive motion, and warned that future
repetitive filings would result in sanctions. Id. at
Dkt. No. 12.
clerk of court reassigned the underlying criminal case to
this court on April 10, 2017, and the court granted the
defendant's motion to travel outside the United States.
No. 06-cr-164, Dkt. No. 160. On June 1, 2017, the court
transferred jurisdiction over the defendant's supervised
release to the Eastern District of Arkansas. Id. at
Dkt. No. 161. The defendant returned to this court two months
later with the current request for correction of his PSR and
the request that the court appoint counsel to help him pursue
yet another §2255 motion. Id. at Dkt. No. 162.
Second and Successive Petitions
court construes the defendant's letter as a second or
successive §2255 motion that must be certified “as
provided by 28 U.S.C. §2244 by a panel of the
appropriate court of appeals” before he may proceed. 28
U.S.C. §2255(h). In this motion, the defendant makes the
same arguments he made repeatedly to Judge Randa-that his
Arkansas conviction is no longer valid, that Judge Randa used
that conviction as “his sole, single
justification” for imposing the mandatory minimum, and
that the PSR should be changed and the court should appoint
him a lawyer. Dkt. No. 162. The defendant does not
specifically state that he wants the court to vacate his
sentence, but he asks that the court correct the PSR, and he
implies (as he has directly argued several times before) that
because the ...