USA v. Harvey

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
Michael Harvey, )
)
Petitioner, ) ORDER ON MOTION TO VACATE,
) SET ASIDE, OR CORRECT SENTENCE
vs. )
) Case No. 3:23-cv-171; 3:23-cv-172
United States of America, )
)
Respondent. )
___________________________________________________________________________
United States of America, )
)
Plaintiff, )
)
vs. )
) Case No. 3:20-cr-117; 3:22-cr-75
Michael Harvey, )
)
Defendant. )
___________________________________________________________________________
Petitioner Michael Harvey moves to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255. Doc. 205 (case no. 3:20-cr-117); Doc. 29 (case no. 3:22-cr-75). The United States opposes
the motions. Doc. 207 (case no. 3:20-cr-117); Doc. 31 (case no. 3:22-cr-75). After careful review
of the entire record, the motions are denied.
I. BACKGROUND
In July 2020, Harvey was charged in connection to his role as the leader of a multi-state
check cashing scheme. Doc. 2.1 Harvey eventually pleaded guilty to one count of bank fraud and
one count of aggravated identity theft. Doc. 97. The factual basis for the guilty pleas outlined the
details of the scheme. Doc. 97 at 2-3. Harvey admitted that he directed individuals to steal checks
1 Unless otherwise indicated, the citations in this order refer to case no. 3:20-cr-117.
Case 3:20-cr-00117-PDW Document 213 Filed 01/25/24 Page 1 of 7

2
from mailboxes located in industrial areas and recruit other individuals referred to as “cashers” to
cash the stolen checks. Id. He then altered the stolen checks to appear as if they had been written
to the “casher.” Id. Harvey would distribute the proceeds from the fraudulent checks amongst the
cashers, co-defendants, and himself. Id. As part of the scheme, he specifically conceded he used
the identifying information of T.B. without proper authority in connection to bank fraud. Id. at 3.
Harvey was sentenced to 41 months of imprisonment on the bank fraud conviction and 24
months for aggravated identity theft to be served consecutive to the bank fraud sentence. Doc. 156.
These sentences were to be served concurrently with the sentence imposed in a separate case that
originated in Wisconsin. See Case No. 3:22-cr-75. Harvey did not appeal. He filed these § 2255
motions on September 11, 2023, challenging his 24-month sentence for aggravated identity theft,
arguing that he is not guilty based on the holding in United States v. Dubin, 599 U.S. 110 (2023)
and that he received ineffective assistance of counsel.
II. LEGAL STANDARD
A motion under 28 U.S.C. § 2255 provides avenues for relief “in several circumstances,
including cases shown to contain jurisdictional errors, constitutional errors, and errors of law.”
Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019) (citing 28 U.S.C. § 2255(b)).
“Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.”
Fletcher v. United States, 858 F.3d 501, 505 (8th Cir. 2017) (quoting Jennings v. United States,
696 F.3d 759, 762 (8th Cir. 2012)).
Harvey bases his § 2255 motion on, in part, a violation of his Sixth Amendment right to
effective assistance of counsel. To obtain relief on an ineffective assistance of counsel claim, a
petitioner must satisfy the two-prong test announced in Strickland v. Washington, 466 U.S. 668,
687 (1984). For the first prong, a petitioner must establish constitutionally deficient representation,
Case 3:20-cr-00117-PDW Document 213 Filed 01/25/24 Page 2 of 7

3
meaning counsel’s performance fell below an objective standard of reasonableness. Meza-Lopez
v. United States, 929 F.3d 1041, 1044 (8th Cir. 2019) (citing Strickland, 466 U.S. at 687-88).
“This requires showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. Courts view
the representation from counsel’s perspective at the time of the alleged error to avoid the effects
of hindsight and second-guessing. Kemp v. Kelley, 924 F.3d 489, 500 (8th Cir. 2019) (citing
Strickland, 466 U.S. at 489). A petitioner must overcome a strong presumption that defense
counsel provided “adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690; see also Camacho v. Kelley, 888
F.3d 389, 394 (8th Cir. 2018). Strategic decisions made after a thorough investigation of the law
and facts are virtually unchallengeable. United States v. Orr, 636 F.3d 944, 950 (8th Cir. 2011).
To satisfy the second prong, a petitioner must demonstrate that prejudice resulted from the
deficient representation. Strickland, 466 U.S. at 687. To do so, a petitioner must show “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Adejumo v. United States, 908 F.3d 357, 361 (8th Cir. 2018) (quoting
Strickland, 466 U.S. at 694). A reasonable probability is one “sufficient to undermine confidence
in the outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland, 466 U.S. at
694). When evaluating the probability of a different result, courts view the totality of the evidence
to gauge the effect of the error. Williams v. United States, 452 F.3d 1009, 1013 (8th Cir. 2006)
(citing Strickland, 466 U.S. at 495). Where a petitioner raises multiple ineffective assistance of
counsel claims, each claim must be examined independently rather than collectively. Hall v.
Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002) (citing Wainwright v. Lockhart, 80 F.3d 1226,
Case 3:20-cr-00117-PDW Document 213 Filed 01/25/24 Page 3 of 7

4
1233 (8th Cir. 1996)). Cumulative error will not justify habeas relief. Middleton v. Roper, 455
F.3d 838, 851 (8th Cir. 2006).
The court may dismiss a Section 2255 motion without a hearing if “(1) the petitioner’s
allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot
be accepted as true because they are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.” Tinajero-Ortiz v. United States, 635 F.3d 1100, 1105
(8th Cir. 2011). “The movant bears the burden to prove each ground entitling relief.” Golinveaux
v. United States, 915 F.3d 564, 567 (8th Cir. 2019) (citation omitted). Whether to grant or deny an
evidentiary hearing is committed to the discretion of the district court. See id.
III. DISCUSSION
Harvey contends he is factually innocent of aggravated identity theft post-Dubin and that
his counsel was ineffective for failing to raise the argument that was successful in Dubin. When
Harvey’s accusations are examined against the record, however, it is clear that his claims lack
merit.
A. Procedural Default
To start, Harvey did not object to the Court’s interpretation of 18 U.S.C. § 1028A(a)(1)—
the aggravated identity theft statute—at any point in his criminal proceedings, and he did not
appeal his conviction. As a result, the claim is procedurally defaulted because it was not raised on
direct review. Roundtree v. United States, 885 F.3d 1095, 1098 (8th Cir. 2018); Lindsey v. United
States, 615 F.3d 998, 1000 (8th Cir. 2010); Johnson v. United States, 278 F.3d 839, 844 (8th Cir.
2002). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review,
the claim may be raised in habeas only if the defendant can first demonstrate either cause and
Case 3:20-cr-00117-PDW Document 213 Filed 01/25/24 Page 4 of 7

5
actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622
(1998) (cleaned up).
B. Actual Innocence
Harvey argues he is actually innocent. To establish actual innocence, a defendant must
demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror
would have convicted him. Bousley, 523 U.S. at 624. Harvey suggests Dubin stands for the
proposition that his conviction and sentence were unlawful because the statute is unconstitutionally
vague. But Harvey’s reading of Dubin sweeps too broadly. In Dubin, the United States Supreme
Court held that to be convicted of aggravated identity theft, the use of another individual’s identity
must be at the “crux of the criminality.” Dubin, 599 U.S. at 131-32. To be sure, Dubin held that
the specific defendant at issue could not have committed aggravated identity theft because, while
he had inflated some Medicare billings, no one’s specific identity had been used fraudulently or
deceptively. Id. at 132. But Harvey’s crime in not analogous.
Here, Harvey reproduced a check signed by T.B. that was drawn on his business account.
He used T.B.’s actual signature to wrongfully access funds that belonged to T.B. T.B.’s identity
was used in a fraudulent and deceptive manner and “at the crux” of the criminality to which Harvey
pleaded guilty. A reasonable juror could have found Harvey guilty, he is not actually innocent of
the crime of identity theft under Dubin, and his claim fails.
C. Ineffective Assistance
Harvey’s claim for ineffective assistance fails for the same reason as the actual innocence
claim. His claim for ineffective assistance is predicated on counsel being ineffective for failing to
make the argument that was successful in Dubin. But this argument would have failed because
Harvey’s case is distinguishable from Dubin. Counsel is not ineffective for failing to raise a
Case 3:20-cr-00117-PDW Document 213 Filed 01/25/24 Page 5 of 7

6
meritless argument. See Thomas v. United States, 951 F.2d 902, 904-05 (8th Cir. 1991). Harvey’s
counsel was not ineffective for failing to raise a Dubin argument, and his claim fails.
D. Evidentiary Hearing
Section 2255(b) requires an evidentiary hearing “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.” No hearing is
necessary “if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to
relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements of fact.” Sanders v. United States,
341 F.3d 720, 722 (8th Cir. 2003).
After careful review of the file and all of Harvey’s substantive § 2255 claims, the record
decisively refutes each claim presented. As such, dismissal without an evidentiary hearing is
warranted. See Calkins v. United States, 795 F.3d 896, 900 (8th Cir. 2015).
IV. CONCLUSION
The Court has reviewed the record, the parties’ filings, and the relevant legal authority.
Harvey’s motions to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (Doc. 205 in
case no. 3:20-cr-117 and Doc. 29 in case no. 3:22-cr-75) are DENIED. This matter is
DISMISSED without an evidentiary hearing.
The Court certifies that an appeal from the denial of the motion may not be taken in forma
pauperis because such an appeal would be frivolous and cannot be taken in good faith. Coppedge
v. United States, 369 U.S. 438, 444-45 (1962). Based upon the entire record, dismissal is not
debatable, reasonably subject to a different outcome on appeal, or otherwise deserving of further
proceedings. Therefore, the Court will not issue a certificate of appealability. Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983); Tiedeman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997). If
Case 3:20-cr-00117-PDW Document 213 Filed 01/25/24 Page 6 of 7

7
Harvey desires further review, he may request a certificate of appealability from a circuit judge of
the Eighth Circuit Court of Appeals.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this _____ day of January, 2024.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
25th
Case 3:20-cr-00117-PDW Document 213 Filed 01/25/24 Page 7 of 7