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United States v. Harry

United States District Court, D. New Mexico

May 24, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
MYRON JIM HARRY, Defendant-Movant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JERRY H. RITTER, UNITED STATES MAGISTRATE JUDGE

         THIS 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).[1] 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[2] that Mr. Harry's motion be denied, because he has not stated a plausible claim that he received ineffective assistance of counsel.

         Background and Procedural Facts

         A 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 facts.

         On May 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).

         During 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).

         A 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, [3] the jury returned with a guilty verdict on May 9, 2013. (Doc. 182).

         On May 7, 2014, [4] 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.

         Mr. 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).

         In Mr. 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).

         At the 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).

         Mr. 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).

         Legal ...


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