United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
H. RITTER, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Petitioner/Defendant Myron
Jim Harry's (“Petitioner” or “Mr.
Harry”) Motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, filed on May 26,
2017. (Doc. 267). Petitioner argues that he received
ineffective assistance of counsel during the plea negotiation
stage, and should be granted post-conviction relief. The
Court held an evidentiary hearing pursuant to 28 U.S.C.
§ 2255(b) on March 7, 2018, at 2:00 p.m. Having
thoroughly reviewed the evidence, the submissions of the
parties, the record before the Court, and the relevant law,
the undersigned recommends that Mr. Harry's motion be denied,
because he has not stated a plausible claim that he received
ineffective assistance of counsel.
and Procedural Facts
criminal complaint was filed on May 24, 2010 against Mr.
Harry for violating 18 U.S.C. §§ 1153 and
2242(2)(A)(B), for sexual abuse in Indian country. (Doc. 1).
The factual background for the criminal matter has been
discussed at length in the Court's Memorandum Opinion and
Order on Defendant's Motion to Suppress Evidence Based on
Spoliation or Incompleteness, filed on February 19, 2013
(Doc. 114), and in Mr. Harry's Tenth Circuit appeal,
United States v. Harry, 816 F.3d 1268, 1272-1275
(10th Cir. 2016). A full factual background is therefore
unnecessary; however, for purposes of the motion in front of
this Court, some of the background facts will be useful. The
undersigned will therefore recite a summary of the relevant
6, 2010, Mr. Harry and Jane Doe attended a social gathering
at a mutual friend's apartment in Shiprock, New Mexico.
(Doc. 249 at 51:19 to 52:14). In the early morning hours, Mr.
Harry went into the spare bedroom where Ms. Doe was sleeping,
and penetrated her vaginally with his penis. (Doc. 1 at 3-4;
Doc. 250 at 16:8 to 17:2). A female guest who was sleeping on
the air mattress next to Ms. Doe was awakened by sounds and
movement on the mattress, saw that Ms. Doe was sleeping, and
demanded that Mr. Harry leave immediately. (Doc. 1 at 3-4;
Doc. 250 at 136:20 to 138:19). Ms. Doe had a rape kit
completed later that day which revealed several tears as well
as Mr. Harry's DNA in her vagina. (Doc. 250 at 44:20 to
45:2; 109:2 to 113:21; 198:11-22). Mr. Harry, unaware of the
discovery of his DNA, informed Navajo Nation criminal
investigator, Jefferson Joe, that he had not entered the room
on the night in question. (Id. at 202:18-21; Doc.
251 at 76:20 to 77:22).
litigation, both the United States and Mr. Harry filed
several pretrial motions. Many of Mr. Harry's motions
were denied, (see, e.g., Doc. 75; Doc. 114; Doc.
138; Doc. 145; Doc. 236; Doc. 85; Doc. 113; Doc. 108), while
many of the United States' motions were granted.
(See Doc. 96; Doc. 167; Doc. 148; Doc. 130; Doc.
228; Doc. 129; Doc. 197). Prior to trial, the United States
and Mr. Harry engaged in plea negotiations. The parties
discussed these plea negotiations before the Court, and
agreed that there had been informal, preliminary plea
negotiations, one of which was reduced to writing. Mr. Samore
further stated that the parties had done their best to
resolve the case through plea bargaining, but were ultimately
unsuccessful; Mr. Harry agreed that this was his
understanding as well. (Doc. 249 at 13:18 to 15:13).
four-day jury trial commenced on May 6, 2013. Mr. Harry
testified that he had had consensual sexual relations with
Ms. Doe. (Doc. 251 at 54:6 to 59:22). However, during cross
examination, he testified inconsistently that he
“wasn't sure if [Ms. Doe] was herself or not, like
awake or not awake, ” (Id. at 91:10-16), but
that “she was, you know, coherent and moving around,
” and that was how he knew she was awake.
(Id.at 91:18-23). He also fatally testified,
“I wasn't really aware - or sure what had happened
that night. You know, I just thought it was consensual at the
time. But ever since this case started going on, yesterday I
heard their testimony, and I kind of feel that, you know, I
don't think it was; I was mistaken.”
(Id.at 67:8-12). After deliberating for a total of 4
hours 12 minutes,  the jury returned with a guilty verdict on
May 9, 2013. (Doc. 182).
7, 2014,  Petitioner was sentenced to 151 months
imprisonment, and ten years supervised release. While the
United States asked the Court for the high end of the
Sentencing Guidelines set forth in the Presentence Report,
(Doc. 225 at 1, 6), Mr. Samore requested a ten-level variance
or departure. (Doc. 226 at 4). Judge Browning denied both
requests, but stated at the sentencing hearing that he was
“troubled by Mr. Harry's lack of honesty throughout
this case, ” that he had not come “to grips with
what occurred that night, ” and even during sentencing
had not really accepted responsibility. (Doc. 239; Doc. 247
at 21:19-20; 22:3-6). Mr. Harry submitted a draft Statement
for Acceptance of Responsibility to Mr. Samore, in which he
stated that Ms. Doe had “flirted” with him all
night, that she appeared at one point less than fully
clothed, and that he was “sure [Doe] wanted to have
sex, because she grabbed at [his] belt and [they] were
kissing each other.” (Doc. 273-3 at 1, 2). However, he
also stated he did “not know to this day if she was
really interested in having sex.” (Doc. 273-2 at 1).
Mr. Harry then filed an appeal, represented by Mr. Samore, in
which he also argued, in part, that the Court wrongfully
precluded evidence that Ms. Doe had “flirted”
with him on the night of the incident. See United States
v. Harry, 816 F.3d 1268, 1271-1272 (10th Cir. 2016). The
Tenth Circuit affirmed Petitioner's conviction and
sentence. Id. at 1284.
Harry then filed this Petition, alleging that he received
ineffective assistance of counsel from Mr. Samore, because
Mr. Samore did not advise him to accept a plea offer rather
than go to trial. In his declaration accompanying the
Petition, he avers that Mr. Samore advised him “not to
accept the plea offer because [they] had a strong case if
[they] proceeded to trial, ” and that they could not
negotiate another plea after the initial plea negotiations
concluded. (Doc. 267-2 at ¶¶ 3, 5). Mr. Harry also
alleged that Mr. Samore did not discuss the significance of
the lost pretrial motions or the weight of the
Government's evidence against him, that he would have
entered an “open” guilty plea had he been advised
to do so, and that he only maintained his innocence
throughout the proceedings because he was moving forward with
trial. (Id. at ¶¶ 4, 6-7).
Samore's affidavit attached to the United States'
Response, he countered that he had “thoroughly apprised
Mr. Harry of the advantages and detriments of entering a
guilty plea…as well as the advantages of proceeding to
trial, ” and denied advising him not to accept a plea
offer. (Doc. 273-1 at ¶¶ 9, 15). He also contended
that the parties made reasonable efforts at plea negotiation,
but came to an impasse over the parties' disagreement as
to sex offender registry. (Id. at ¶¶ 4-6,
7, 11). Mr. Samore swore that the United States' written
plea offer was for 70-87 months. (Id.at ¶ 7).
evidentiary hearing on March 7, 2018, Mr. Harry testified
that his counsel communicated a plea to him for six to seven
years, but he did not accept the plea, “[b]ecause at
that time, it seemed like a lot of years to [him], ”
and he did not want to plead to anything that would require
him to register as a sex offender (Doc. 288 at 5:17 to 6:13;
18:17-22). Mr. Harry also testified that he rejected a second
plea offer for “ten to seven years, ” because
that also “seemed like a lot of time, ” and Mr.
Samore informed him that he had a 50/50 chance of beating the
case. (Id. at 8:13 to 9:12). He reiterated that Mr.
Samore did not explain that he could plead guilty without a
plea agreement, nor did he advise him to plead guilty,
although Mr. Samore did tell Mr. Harry,
“‘Everything matches everything towards you, and
it's most likely you'll get found guilty, but
you've still got a shot at arguing in some
cases.'” (Id.at 11:3 to 12:2). Mr. Samore
did not, however, tell him to reject the plea and go to
trial. (Id. at 17:10-13). While Mr. Harry stated
that he did not want to plead guilty to something that was
“irrelevant, ” nor did he want to plead to
anything at all, he would have pled guilty early if Mr.
Samore explained that the evidence against him was
substantial. (Id. at 13:20 to 14:8; 19:3-5).
Samore then testified that he kept channels of communication
open with the United States in this case, but that the
parties never got close to a resolution, because Mr. Harry
was adamant about not accepting sex offender registration.
(Id. at 33:23 to 35:4). He claims he had suggested
an assault plea to avoid sex offender registration, but the
United States would not accept such a plea. (Id. at
36:2-13). He further testified that he never advises a client
to reject a plea and go to trial, but informs them that the
odds are always against the defendant in criminal cases.
(Id. at 41:7-24). As such, he emphasized that he
never would have indicated that Mr. Harry had a 50/50 chance
of beating his case. (Id. at 46:24 to 47:10).