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United States v. Harmon

November 13, 2009

UNITED STATES OF AMERICA
v.
RONALD HARMON



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

Petitioner, Ronald Harmon, is serving a 180-month federal prison sentence, having been convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count One), and simple possession of narcotics, in violation of 21 U.S.C. § 844 (Count Two). Sentence was imposed on May 2, 2007, and was based on the Court's determination that Harmon, as an Armed Career Criminal, was subject to a mandatory minimum 180 month sentence under 18 U.S.C. § 924(e). Petitioner appealed his sentence to the United States Court of Appeals for the Third Circuit which affirmed the sentence on August 29, 2008.

Presently pending is petitioner's pro se Motion under 28 U.S.C. § 2255. In the Motion, petitioner collaterally attacks his sentence and asks the Court to vacate the sentence on the same ground as was raised and rejected in his direct appeal - that his 1987 narcotics conviction did not sufficiently identify the controlled substance to permit the Court to sentence him as an Armed Career Criminal. The habeas corpus motion also claims that sentencing counsel was ineffective for failing to file a sentencing memorandum fully setting forth petitioner's Armed Career Criminal argument. In his Reply, petitioner argues that counsel was also ineffective for failure to require the Government to produce any evidence of drug type or drug in support of the charge in Count Two of the Indictment - simple possession of narcotics, in violation of 21 U.S.C. § 844. For the reasons set forth below, petitioner's § 2255 motion is denied.

II. BACKGROUND

Petitioner was charged in a two-count Indictment filed June 27, 2006, with the crimes of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1)and 924(e), and with simple possession of a controlled substance in violation of 21 U.S.C. § 844.

He pled guilty to those charges on December 19, 2006.

Sentencing was held on May 2, 2007. At that time, the Government argued that defendant was an Armed Career Criminal under 18 U.S.C. § 924(e) and thus was subject to a mandatory minimum sentence of 15 years. Section 924(e)(1) provides that a person who is convicted of a violation of 18 U.S.C. § 922(g) - possession of a weapon by a convicted felon - and has three previous convictions for a violent felony or a serious drug offense or both, committed on occasions different from one another, is subject to enhanced penalties -imprisonment of not less than 15 years. United States Sentencing Guideline § 4B1.4 provides that a defendant who is subject to enhanced penalties under § 924(e) is an Armed Career Criminal.

At sentencing, the Court determined that petitioner had three prior convictions - a robbery conviction on March 26, 1987, which qualified as a violent felony, and two controlled substance convictions - May 6, 1987, and March 4, 2002 - which qualified as serious drug offenses because, under the applicable state statutes, they were punishable by imprisonment for terms exceeding one year. Accordingly, he was sentenced, inter alia, to the mandatory minimum, 180 months incarceration. In his § 2255 motion, petitioner challenges the Court's determination that he is an Armed Career Criminal, arguing that the May 6, 1987 conviction, was not a serious drug offense. That is the precise argument that was made and rejected by the Court of Appeals.

III. DISCUSSION

A. Petitioner's Argument That His May, 1987, Drug Conviction Does Not Qualify as a Serious Drug Offense and That He Was Improperly Determined to Be an Armed Career Criminal

The question of petitioner's Armed Career Criminal status was the sole issue presented in petitioner's appeal, and the Court of Appeals affirmed this Court's determination that petitioner was, in fact, an Armed Career Criminal. Specifically, the Court of Appeals ruled that the charging document involved in the May, 1987 conviction narrowed the charge to the felonious manufacture, delivery or possession with intent to manufacture or deliver cocaine, and defendant pled guilty to that charge. With respect to the guilty plea, the Court of Appeals noted that, on the reverse side of the charging document, petitioner wrote "I plead guilty to possession with intent to deliver a controlled substance." The fact that petitioner did not write the word "cocaine" after indication of his plea did not, in the opinion of the Court of Appeals, mean that he was pleading guilty to "a controlled substance, but not to cocaine." Notwithstanding the determination of the Court of Appeals, this Court will address petitioner's arguments.

It is well settled that an issue raised and litigated on direct appeal should not again be challenged in a collateral attack. See Reed v. Farley, 10 F.3d 100, 105 and n.4 (1993)("Section 2255 may not be employed to relitigate questions, on collateral attack, which were raised and rejected on direct appeal") (United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981)("Once a legal argument has been litigated and decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those arguments if raised again in collateral proceedings under 28 U.S.C. § 2255.").*fn1

In May, 1987, petitioner pled guilty to a controlled substance offense in violation of 30 Pa.C.S. ยง 780-113(a)(30). To qualify as a serious drug offense under the federal statute "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . [must have] a ...


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