In a case presenting a “rare circumstance” that “few if any other federal prisoners face,” the 7th Circuit Court of Appeals affirmed the U.S. District Court for the Southern District of Indiana did not err in denying habeas corpus relief to an Indiana man on Friday. The 7th Circuit did acknowledge, however, the appellant’s argument that his counsel was ineffective by not challenging whether his drug convictions were predicates would succeed today.
Christopher Harris was charged in 2016 with possessing with intent to distribute 50 grams or more of methamphetamine. Due to prior drug convictions, Harris faced significant sentencing exposure.
At the time, the statutory minimum sentence for Harris’ crime was 10 years. However, the government could also enhance the potential sentence by arguing that two of Harris’ prior convictions were felony drug offenses: an Indiana conviction in 2006 for dealing cocaine and an Indiana conviction in 2001 for possessing cocaine.
One prior “felony drug offense” increased the mandatory minimum sentence to 20 years while two required a life sentence at the time.
To avoid a life sentence, Harris reached an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) with the government to plead guilty and accept a sentence of 20 years in prison. Pursuant to that deal, the government filed a notice listing only one predicate offense, the 2006 Indiana conviction for dealing cocaine.
At Harris’ sentencing, the court confirmed that he knew he was waiving his right to challenge his conviction and sentence, except as to ineffective assistance of counsel.
Acting pro se, Harris then timely moved to vacate his sentence pursuant to 28 U.S.C. § 2255. He argued his counsel had been ineffective during plea bargaining for failing to challenge the 21 U.S.C. § 851 enhancement toward the prior dealing in cocaine case and said his 2006 conviction “is not permissible to be used because of its unconstitutional nature” in light of Decamps v. United States, 570, U.S. 254 (2013).
The district court denied Harris’ motion, but soon after the judgment two legal developments clarified whether Harris’ prior convictions fit the definition of a “felony drug offense.”
First, in United States v. De La Torre, 940 F.3d 938, 952 (7th Cir. 2019), the court held that a different Indiana drug crime was not a “felony drug offense” because the state’s definition of the controlled substance involved — including, among other terms, its definition of an “isomer” — applied more broadly than federal law. Less than a year later, the 7th Circuit decided in United States v. Ruth, 966 F.3d 642, 647, 650 (7th Cir. 2020), that an Illinois conviction for possession with intent to deliver cocaine was not a “felony drug offense” because Illinois’s definition of cocaine — like Indiana’s — included optical, positional and geometric isomers, and therefore was broader than federal law.
Harris requested a certificate of appealability, which was granted, as to whether his counsel was ineffective for failing to argue that his prior conviction did not qualify as a predicate “felony drug offense” because Indiana Code §§ 35-48-1-7 and 35-48-2-8(b) (2006) defined cocaine more broadly than the federal code, 21 U.S.C. §§ 802(17)(C)(D).
In its opinion, the 7th Circuit wrote that the De La Torre decision would’ve aided Harris’ argument, but didn’t find his counsel’s reasoning for seeking the 20-year sentence unreasonable at the time.
The court wrote that to show deficient performance, it is not enough to rely on hindsight about whether a proposed challenge would have succeeded, citing Bridges v. United States, 991 F.3d 793, 802 (7th Cir. 2021). Rather, the reasonableness of counsel’s performance must be assessed “in the context of the law” at the time, citing Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993).
“We do not know whether counsel was aware of a possible categorical challenge to Indiana’s definition of an isomer,” 7th Circuit Judge Michael Brennan wrote. “… In sum, the defense essentially had a bird in the hand — the plea offer with a set 20-year sentence — with a possibility of two in the bush — the novel challenge to the predicate offenses with the risk of a mandatory life sentence. Faced with these options, it was objectively reasonable for Harris’s counsel to pursue the plea deal.”
The case is Christopher Harris v. United States of America, 19-3363.