USA v. Harris et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA 	)
)
v. 	) 	CRIMINAL NO. 05-0023-WS
)
JEROME HARRIS, JR., 	) 	CIVIL NO. 08-CV-0158-WS
)
Petitioner. 	)
ORDER
This matter comes before the Court on petitioner Jerome Harris, Jr.’s pro se second
amended petition for postconviction relief, which he has styled as “Verified Memorandum Brief
in Support of Second Amended Motion under 28 U.S.C. § 2255” (doc. 155).
I. 	Factual and Procedural History.
On the morning of October 3, 2004, the congregation at Mount Hebron Baptist Church in
Mobile, Alabama witnessed quite a surprise during Sunday services. Jerome Harris, Jr., entered
the church and deposited a cache of firearms and controlled substances at the altar, ostensibly in
an act of religious revelation. The drugs and guns were secured by off-duty law enforcement
officers who happened to be present, but Harris was not placed under arrest. Instead, one of
those officers, Mobile Police Detective Patrick Sanders, spoke with him briefly and obtained
contact information for him. That evening, Detective Sanders, who was at that time assigned to
the Narcotics Division of the Mobile Police Department, requested that Harris appear at the
Narcotics Division’s offices the following morning. Harris agreed, and appeared as scheduled,
whereupon he was interviewed by multiple Mobile Police Department officers. After several
false starts, Harris admitted that the drugs and guns belonged to him and that he had been
distributing narcotics for some time. Harris indicated that, during a cocaine binge that weekend,
he had received a warning that the police were coming after him. Upon learning this
information, Harris said, he had panicked that law enforcement would arrest him or execute a
search warrant while he had the contraband in his possession. In his drug-induced state, Harris
(with the participation of his wife and co-defendant, Leketa Harris) had formulated the plan of
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1 Defense counsel’s representations to the Court during trial suggested that Harris’s
decision to testify or not would hinge on the admission or exclusion of the Government’s
proffered Rule 404(b) evidence of Harris’s August 2001 conviction in state court for possession
of cocaine. When the Court deemed the evidence of Harris’s previous drug conviction
inadmissible under Rule 404(b), defense counsel indicated that Harris was not going to testify.
Had he testified, that prior drug conviction would have become admissible against him as
impeachment under Rule 609, notwithstanding the previous Rule 404(b) ruling. Obviously, the
calculus of whether or not to place Harris on the stand might have differed if evidence of his
prior drug conviction were already before the jury.
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disposing of these items at church.
In January 2005, a federal grand jury handed down an Indictment charging Harris with,
inter alia, possessing with intent to distribute crack and powder cocaine, in violation of 21
U.S.C. § 841(a)(1), and knowingly using, carrying and possessing firearms during and in relation
to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). The above-described events of
October 3 and 4, 2004 formed the factual predicate of the Indictment.
The case proceeded to trial before the undersigned on June 1, 2005. At trial, the
Government relied heavily on Harris’s admissions to Mobile Police Department officers on
October 4, 2004, as a means of proving both that he had intended to distribute the drugs that he
brought to the church, and that he had used the firearms he took to the church as protection in
furtherance of his drug-dealing activities. Harris, who was represented at trial by retained
attorneys James Brandyburg, Esq., and Jacqueline Brown, Esq., did not testify on his own behalf
at trial. 1 The jury returned guilty verdicts on both the § 841(a)(1) offenses and the § 924(c)(1)
offense charged in the Indictment. Based on the jury’s verdict, the Court sentenced Harris to a
term of imprisonment of 300 months, consisting of 240 months as to the § 841(a)(1) offenses and
60 months, to be served consecutively, as to the § 924(c)(1) offense. Harris’s conviction and
sentence were affirmed on direct appeal.
Following his unsuccessful appeal, Harris timely filed a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255. The grounds for Harris’s § 2255 petition
shifted substantially over time as he jettisoned certain theories of relief and engrafted others;
however, all of these modifications were timely and were made with express leave of court.
When the dust finally settled, Harris’s stated grounds for collaterally attacking his sentence were
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2 Compare Aron v. United States, 291 F.3d 708, 714-15 (11 th Cir. 2002) (in § 2255
context, where petitioner “alleges facts that, if true, would entitle him to relief, then the district
court should order an evidentiary hearing and rule on the merits of his claim”) (citation omitted)
and United States v. Yizar, 956 F.2d 230, 234 (11 th Cir. 1992) (where § 2255 petitioner “has
made sufficient allegations so that it cannot be conclusively stated that he is entitled to no relief,
... an evidentiary hearing must be held”) with Lynn v. United States, 365 F.3d 1225, 1239 (11 th
Cir. 2004) (recognizing that evidentiary hearing is not required when § 2255 petitioner offers
nothing more than conclusory allegations) and Long v. United States, 883 F.2d 966, 968 (11 th
Cir. 1989) (“A district court may deny relief under 28 U.S.C. § 2255 without an evidentiary
hearing if the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.”) (citations omitted).
3 The comprehensive nature of the hearing is underscored by the fact that the
duration of Harris’s § 2255 hearing exceeded that of his trial.
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confined to the following contentions of constitutional error: (1) “Counsel was constitutionally
ineffective ... for failing to seek suppression of Mr. Harris’s 10/4/04 statement”; (2) “Attorney
James Brandyburg was constitutionally ineffective due to a conflict of interest which deprived
Mr. Harris of the benefits of a cooperation based plea agreement offered by the United States”;
and (3) “Mr. Harris was denied the effective assistance of counsel during his trial when attorney
Brandyburg refused to allow Mr. Harris to testify truthful [sic] in violation of Harris’s Fifth
Amendment right.” (Doc. 155, at 2, 6, 8.)
After full briefing on Harris’s § 2255 motion, the Court entered an Order (doc. 168) on
January 6, 2009 opining that the numerous factual disputes and credibility determinations
presented by the parties’ filings, and Harris’s specific factual allegations that, if true, would
entitle him to relief, necessitated an evidentiary hearing.2 For that reason, the undersigned set
this matter down for evidentiary hearing on April 8, 2009 and appointed Paul Bradley Murray,
Esq., to represent petitioner at the hearing pursuant to Rule 8(c) of the Rules Governing Section
2255 Proceedings. On the designated hearing date, the Court received an entire day’s worth of
evidence and argument from the parties, including live testimony from Harris, his wife, three of
his former attorneys, and four officers of the Mobile Police Department.3 After careful review of
the parties’ written submissions, the testimony and exhibits presented at the evidentiary hearing
and at trial, the arguments of counsel, and all other portions of the file deemed relevant, the
Court is now prepared to rule on Harris’s § 2255 motion. Each of his three asserted grounds for
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relief will be addressed in turn.
II. 	Analysis of Petitioner’s Asserted Grounds for Relief.
A. 	Ineffective Assistance Claim Arising from Failure to File Motion to Suppress.
Petitioner’s first asserted ground for relief is that his attorneys rendered ineffective
assistance, in violation of his Sixth Amendment rights, by failing to move to suppress the
statements he gave at the Mobile Police Department offices.
1. 	Ineffective Assistance Standard and Specifics of Harris’s Claim.
Binding precedent is clear that “[t]o obtain relief where an ineffective assistance claim is
based on trial counsel’s failure to file a timely motion to suppress, a petitioner must prove (1)
that counsel’s representation fell below an objective standard of reasonableness, (2) that the
Fourth Amendment claim is meritorious, and (3) that there is a reasonable probability that the
verdict would have been different absent the excludable evidence.” Zakrzewski v. McDonough,
455 F.3d 1254, 1260 (11 th Cir. 2006); see also Kimmelman v. Morrison, 477 U.S. 365, 375, 106
S.Ct. 2574, 91 L.Ed.2d 305 (1986) (“Where defense counsel’s failure to litigate a Fourth
Amendment claim competently is the principal allegation of ineffectiveness, the defendant must
also prove that his Fourth Amendment claim is meritorious ....”). The second element is
dispositive here. Based on the evidence presented at the evidentiary hearing (which in some
ways was tantamount to a post-trial suppression hearing), the Court finds that § 2255 relief is
unwarranted on this claim because there was no underlying constitutional violation with respect
to Harris’s statements, such that any suppression motion would have failed.
Harris contends that the statements he gave at the Mobile Police Department were subject
to suppression by operation of the exclusionary rule for the following reasons: (a) these
statements were the product of custodial interrogation prior to which he was not given the
mandatory Miranda warnings; (b) he was under the influence of cocaine and ecstasy at the time
he made the statements, rendering them involuntary; and (c) law enforcement officers coerced
him to make those statements by threatening to jail his wife if he did not answer their questions
truthfully. (Doc. 155, at 3-4.) The credible evidence before the Court does not support any of
these bases for suppression.
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2. 	Whether Harris’s Statements Were Procured in Violation of Miranda.
a. 	Findings of Fact.
Based on the evidence received at the hearing, as well as the relevant trial testimony, the
Court finds the following pertinent facts concerning the Miranda issue: On October 3, 2004,
Detective Sanders spoke briefly with Harris at Mount Hebron Baptist Church to inquire about
the source of the weapons and controlled substances he had surrendered during worship services.
Without offering any specifics, Harris advised Detective Sanders that he had taken these items
from kids in the area. Harris was not arrested that day; to the contrary, Detective Sanders
believed Harris’s story, felt that he had done an admirable deed by confiscating these drugs and
guns, and plainly did not perceive Harris to be a suspect or a criminal. So Harris was allowed to
go home. That evening, Detective Sanders spoke with Harris by telephone, and asked him to
come in to the MPD Narcotics Division’s offices the following morning so that Detective
Sanders could introduce him to his supervisors. Harris agreed. No threats, coercion, or cajoling
were utilized to persuade Harris to visit the police station; rather, he consented to do so of his
own free will. There was no reason to believe he would be interrogated or taken into custody by
the MPD.
On the morning of October 4, 2004, Harris and his wife, Laketa Harris, voluntarily
appeared at the Narcotics Division offices as requested at approximately 9 or 9:30 a.m. They
drove themselves to that location in their own vehicle, without being accompanied or escorted by
law enforcement officers. Upon arrival, they were not arrested or detained. To the contrary,
Detective Sanders (accompanied by his partner) greeted them, gave Harris a hug, and chatted
with them amiably in general, casual conversation for approximately 30 minutes while awaiting
the availability of his supervisors. Thus, Harris was welcomed by law enforcement on the
morning of October 4 as an upstanding citizen and a good Samaritan, rather than as a suspect or
a criminal.
By approximately 10:00 or 10:30 a.m., Detective Sanders left the room, and Officer John
Nixon entered to interview Harris. The gravamen of Officer Nixon’s questioning was to elicit
specific information concerning how Harris came to possess the controlled substances and
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4 Officer Nixon became involved and Detective Sanders ended his involvement
was Mobile Police Department supervisors’ assessment that, to avoid any potential conflict, the
matter should be reassigned away from Detective Sanders given that he and Harris attended the
same church. Thus, the assignment of Officer Nixon was not indicative of an upward ratcheting
of the scrutiny being given to Harris, nor did it alter his status as an individual voluntarily
present at the police station and free to leave at any time.
5 Officer Nixon’s trial testimony was clear and unambiguous that he read Harris his
Miranda warnings before he commenced his interview. (Trial Transcript (doc. 87), at 62.)
During the April 2009 evidentiary hearing, Officer Nixon reinforced this testimony by
explaining that he had read Harris his rights from a card at the beginning of his questioning.
According to Officer Nixon, he gave Harris his Miranda warnings as a precaution because he did
not know how that morning’s events would unfold, or what Harris might say. This was an
unusual situation, and Officer Nixon could not discount the possibility that, despite Harris’s
voluntary appearance, he might end up in jail if he could not furnish a legitimate explanation for
the origins of the firearms and cocaine. At the evidentiary hearing, Harris testified that Officer
Nixon did not Mirandize him before questioning him; however, based on the undersigned’s
personal observation of the witnesses and an assessment of their credibility, plus Harris’s
admitted dishonesty in other respects, and Officer Nixon’s sensible explanation of why he made
a point of reading Harris his rights at the beginning of the interview, the Court credits Officer
Nixon’s testimony, and does not credit Harris’s contrary testimony, on this point.
6 Harris’s testimony is that Officer Nixon became visibly perturbed, and even red-
faced, when he persisted in his false story about picking up drugs and guns from thugs on the
streets. At that time, Harris said, he asked if he could leave, but Officer Nixon told him he could
not. Leketa Harris likewise testified that Harris was told he could not leave before Officer Nixon
ushered him into Lt. Taylor’s office. For his part, however, Officer Nixon denied that Harris
ever indicated that he wanted to leave, or that he was going to go home. Officer Nixon also
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firearms that he had brought to church the previous morning. 4 When Officer Nixon began
questioning him, Harris was not in custody, had not been arrested, and was free to leave at any
time. Nonetheless, at the outset of the interview, Officer Nixon advised Harris of his Miranda
rights, in accordance with standard procedures of the Mobile Police Department.5 Officer Nixon
spoke with Harris for approximately 90 minutes, in an effort to develop a rapport with him
before reaching the difficult and critical question of how Harris came to possess the weapons and
drugs he had brought to Mount Hebron Baptist Church. Harris’s answer was that he had driven
around Mobile, approached drug dealers on street corners, impressed upon them the error of their
ways, and persuaded them to relinquish these items to him for disposal. Officer Nixon did not
believe him.6 Both the substance of Harris’s narrative and the body language he conveyed in
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denied ever stating that Harris could not leave. The Court does not credit Harris’s testimony on
this point, inasmuch as (i) it is implausible that Officer Nixon would have become visibly angry
given his carefully designed strategy of developing a rapport with Harris and playing the “good
cop,” which would have been obliterated had Officer Nixon berated or scolded him; (ii) it is not
credible that Harris would have asked to leave one time, then immediately dropped the subject
and carried on with his cooperation as if nothing had happened; and (iii) Harris’s dishonesty in
various other aspects of his interactions with Mobile Police Department representatives that
morning creates a substantial credibility deficit infecting the remainder of his testimony. In
addition, Leketa Harris’s testimony is undermined in large part by its inconsistencies with her
previous statements, as well as her admitted bias in wanting to help her husband prevail on his §
2255 motion.
7 As Officer Nixon testified, in his experience, street-level dealers typically do not
own the drugs they sell, but are instead fronted them by bigger dealers, who must be reimbursed
when the “product” is sold. To hand over the drugs to a stranger on the street in an act of moral
or spiritual revelation would be to invite potentially dangerous adverse repercussions from the
suppliers who would still demand to be paid for the drugs, thereby placing the repentant dealer in
a formidable fix. Similarly, Officer Nixon explained, it struck a false note for Harris to suggest
that he had persuaded drug dealers voluntarily to turn over the weapons on which they rely for
protection. These observations, rooted in Officer Nixon’s many years of experience as a
narcotics investigator, as well as the defensive posture (i.e., arms folded, etc.) taken by Harris
during this narrative, led him to conclude that Harris was lying. Officer Nixon’s suspicions in
this regard were well-founded, as Harris admitted during the evidentiary hearing that this story
was false.
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delivering it aroused strong suspicions in Officer Nixon as to its veracity. 7 Notwithstanding his
concerns, Officer Nixon did not confront Harris with the fact that his story was not credible,
because he was attempting to maintain his rapport with Harris. Instead, Officer Nixon excused
himself and reported these developments to Lt. Kay Taylor, who was at that time the
Commander for the MPD’s Narcotics and Vice Unit.
Upon learning that Harris appeared to be fabricating an outlandish tale of how he came to
possess the drugs and guns he had turned in, Lt. Taylor instructed Officer Nixon to bring Harris
to her office. He complied. When Harris arrived in her office, Lt. Taylor challenged him by
saying, in essence, that his story did not make sense and she did not believe him. At that time,
and prior to any substantive questioning by Lt. Taylor, Harris was presented with a form entitled
“Warning and Consent to Speak,” which recited his Miranda rights. (Gov’t Exh. 1.) Officer
Nixon read and explained the form to Harris, after which Harris signed it (with Officer Nixon
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8 Lt. Taylor’s testimony at the evidentiary hearing was emphatic that she would not
have engaged in substantive discussions with Harris without a signed Miranda form.
9 According to Lt. Taylor’s testimony at trial, when Harris first came into her
office, “[i]mmediately, I asked if he had been advised of his rights, which he had. ... And at that
time, I related to him, you are going to be arrested. I stated the charge. And I said, I do not
believe what you said to the officer.” (Trial Transcript, at 102.) Harris maintains that Lt. Taylor
personally handcuffed him when he walked into her office; however, Lt. Taylor and Officer
Nixon both denied it during the evidentiary hearing, and Harris’s allegations concerning
handcuffing have shifted several times during these § 2255 proceedings, such that he is not
credible on this point. Laketa Harris’s testimony that she saw Harris handcuffed at around 11:30
a.m. is not helpful to petitioner, given that her hearing testimony conflicts with her pre-hearing
affidavit as to the timing of the handcuffing, as well as her bias in desiring to aid her husband of
seven years in his § 2255 petition. Of course, even if Harris had been handcuffed in Lt. Taylor’s
office, it would not matter for Miranda purposes because he had already been informed of his
rights twice. Nor would the mere act of handcuffing render his confession involuntary. See
Shriner v. Wainwright, 715 F.2d 1452, 1456 (11 th Cir. 1983) (“The use of handcuffs does not
establish coercion.”).
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and another officer also signing as witnesses) to confirm both his understanding of those rights
and his waiver of same. The form was signed at 12:40 p.m.8
By the time Harris entered Lt. Taylor’s office and signed the Miranda form, the character
of his visit to the Narcotics Division offices had changed. Based on his implausible explanation
to Officer Nixon, Harris was now reasonably viewed as a suspect by the Mobile Police
Department. More to the point for Miranda purposes, he was no longer free to leave. Indeed,
Lt. Taylor bluntly informed Harris that he might as well tell the truth and stop lying because he
was going to go to jail anyway.9 Harris then told another obvious falsehood about the source of
the drugs and guns, a gambit which he explained at the evidentiary hearing by stating that he was
trying to protect himself. Again, Lt. Taylor responded that she did not believe him, and pressed
him for the truth. After two iterations of patently fictional stories, Harris finally relented and
provided a highly incriminating statement outlining his extensive drug distribution activities over
a prolonged period of time. In particular, Harris admitted to Lt. Taylor and Officer Nixon that he
had been dealing in multiple kilograms of cocaine over the last 12 to 18 months, that he would
sometimes cook crack cocaine in his own kitchen, and that he utilized the weapons during and in
furtherance of his drug distribution activities. (Trial Transcript, at 69-70, 90-91.) At that time,
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10 See generally Chandler v. Moore, 240 F.3d 907, 917 (11 th Cir. 2001) (defense
counsel is not ineffective for failing to raise a nonmeritorious issue); Bolender v. Singletary, 16
F.3d 1547, 1573 (11 th Cir. 1994) ("it is axiomatic that the failure to raise nonmeritorious issues
does not constitute ineffective assistance" of counsel).
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Harris also furnished the officers with the names of suppliers and other individuals with whom
he had dealings in the drug trade. Harris explained his behavior of the previous morning by
telling Lt. Taylor and Officer Nixon that an individual named Ghost had tipped him off that the
police were on the verge of “hitting him” with a search or arrest warrant. Harris further
explained that, because he had been on a drug binge at the time, he panicked and formulated the
plan of turning over the contraband at church under the pretense of religious revelation. (Id. at
71.)
b. 	Conclusions of Law.
Based on the foregoing findings of fact, Harris lacked any viable legal basis for
suppressing the statements he gave to Officer Nixon and Lt. Taylor on October 4, 2004. After
conducting an evidentiary hearing and observing the credibility and demeanor of the witnesses,
the Court has specifically found that Harris received oral Miranda warnings before Officer
Nixon’s interview of him commenced, and that he also received written Miranda warnings (and
executed a waiver of same) at the outset of the Lt. Taylor interview. Given these facts, it could
not have been ineffective assistance for Harris’s attorneys to fail to file a motion to suppress his
statements to Officer Nixon and Lt. Taylor on Miranda grounds because Harris was duly
Mirandized prior to making those statements. Any motion to suppress addressed to that issue
would have been denied, so counsel could not have rendered ineffective assistance by failing to
file such a motion. 10
That said, at least a portion of Harris’s statements at the Mobile Police Department were
made prior to his being advised of his rights. But Miranda warnings are not required whenever
law enforcement agents question a suspect; rather, they become mandatory only at the point
when a custodial interrogation begins. See, e.g., United States v. Street, 472 F.3d 1298, 1309
(11th Cir. 2006) (“pre-custodial questioning does not require Miranda warnings”); United States
v. Brown, 441 F.3d 1330, 1347 (11 th Cir. 2006) (deeming it “undisputed that the right to Miranda
warnings attaches when custodial interrogation begins”); United States v. Muegge, 225 F.3d
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11 In case after case, the Eleventh Circuit has found that defendants situated
similarly to Harris (before he reached Lt. Taylor’s office) were not in custody for purposes of
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1267, 1270 (11th Cir. 2000) (explaining that defendant must be advised of Miranda rights prior to
questioning “only if the interrogation was custodial in nature”). Accordingly, this aspect of
Harris’s claim turns on whether he was in custody during police questioning prior to receiving
Miranda warnings.
“A defendant is in custody for purposes of Miranda when there has been a formal arrest
or restraint on freedom of movement of the degree associated with a formal arrest.” United
States v. Lopez-Garcia, --- F.3d ----, 2009 WL 1044594, *7 (11 th Cir. Apr. 21, 2009) (citation
omitted). The custody determination is an objective test, examining the totality of the
circumstances and focusing on whether a reasonable person in the defendant’s position would
perceive a restraint on his freedom of movement such that he would not feel free to leave. See
Street, 472 F.3d at 1309; Muegge, 225 F.3d at 1271 (“The key inquiry in determining if
interrogation was custodial is whether an innocent individual in that situation would feel free to
leave ....”). Because the standard is an objective one, “the actual, subjective beliefs of the
defendant and the interviewing officer on whether the defendant was free to leave are
irrelevant.” Street, 472 F.3d at 1309 (citation omitted). Rather, the relevant factors in this
totality analysis include such details as whether officers brandished weapons, touched the
suspect, or used language or a tone suggesting that his compliance could be compelled. See id.
Applying the foregoing principles to the facts, the Court readily concludes that Harris
was not in custody at any time prior to his being taken to Lt. Taylor’s office. He had come to the
police station of his own free will, and arrived to find MPD officers welcoming him with smiles
and hugs, rather than detention and interrogation. He was not placed under arrest. He was not
handcuffed. He was not locked in a room. He was not told that he could not leave. He was not
physically restrained and his freedom was not restricted in any significant way at any time prior
to the reading of his Miranda rights by Officer Nixon. Indeed, under Eleventh Circuit precedent,
Harris was not subjected to custodial interrogation, and therefore was not entitled to be advised
of his Miranda rights, until Lt. Taylor told him that he might as well tell the truth because he was
going to jail anyway.11 Up until that moment, no reasonable innocent individual in Harris’s
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Miranda. See, e.g., Peoples v. Campbell, 377 F.3d 1208, 1228-30 (11 th Cir. 2004) (defendant
was not in custody for Miranda purposes where he voluntarily went to police station and was not
compelled to remain there); United States v. Phillips, 812 F.2d 1355, 1362 (11 th Cir. 1987) (no
Miranda violation where defendant drove himself to police station in response to message left by
officer, then gave an oral statement without ever being placed under arrest or restrained); Hillary
v. Secretary for Dep’t of Corrections, 2008 WL 4367437, *4 (11th Cir. Sept. 26, 2008) (no
custodial interrogation where defendant voluntarily went to police station and talked with police
about search in an attempt to recover jewelry that had been seized). In one analogous case, the
appellate court reasoned as follows:
“[T]he statements made by Sullivan while he was in Sgt. Gardner’s office were
voluntary and not the product of a custodial interrogation. ... The pre-Miranda
conversation between Sgt. Gardner and the petitioner does not reveal any of the
significant restraint of freedom characteristic of a custodial interrogation. Sgt.
Gardner had no indication of the commission of a crime. ... His initial inquiry was
merely an attempt to investigate and probe the situation. Sullivan was not under
arrest; he remained at the station of his own accord and freely answered the
questions asked of him.”
Sullivan v. State of Ala., 666 F.2d 478, 482 (11 th Cir. 1982). The same could be said of Harris, at
least until Lt. Taylor told him he was going to jail.
12 This is so, despite the Court’s finding of fact that Officer Nixon did read Harris
his Miranda rights at the outset of his interview. In other words, the Mobile Police Department
went above and beyond the constitutional floor of Miranda, and gave Harris warnings before the
Officer Nixon interview even though they were not, strictly speaking, obliged to do so, given
that there was no custodial interrogation at that time.
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shoes would have felt that he was not free to leave. Of course, that was the very moment at
which Officer Nixon went over the written Miranda form with Harris and advised him of his
rights, after which Harris signed a waiver of those rights.
Simply stated, then, everything that occurred before Harris reached Lt. Taylor’s office
was not a custodial interrogation, such that Miranda warnings were not required at all. 12 All
questioning and statements that occurred after Harris walked into Lt. Taylor’s office were
custodial; however, those events transpired pursuant to a written Miranda waiver, so Harris
could not validly have complained in a motion to suppress that those statements were taken in
violation of Miranda. Inasmuch as any motion to suppress that counsel might have filed on
Harris’s behalf would not have been meritorious, his ineffective assistance claim predicated on
counsel’s failure to seek suppression of his statements for violating Miranda must fail.
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3. 	Whether Harris’s Confession Was Involuntary Because of Intoxication.
To the extent that Harris contends that his trial counsel was ineffective in not failing to
move to suppress his October 4 statements on grounds of intoxication, that ground for relief is
likewise unavailing.
“It is settled that statements or confessions made during a time of mental incompetency
or insanity are involuntary and, consequently, inadmissible. ... Voluntariness is premised on the
totality of the circumstances.” Sullivan v. State of Ala., 666 F.2d 478, 482-83 (11 th Cir. 1982)
(citations omitted). To be sure, intoxication is an appropriate factor that may be considered in
assessing the voluntariness of a statement. See, e.g., United States v. LeShore, 543 F.3d 935,
940-41 (7th Cir. 2008) (“[W]hen the interrogating officers reasonably should have known that a
suspect is under the influence of drugs or alcohol, a lesser quantum of coercion may be sufficient
to call into question the voluntariness of the confession.”) (citation omitted); United States v.
Gaddy, 532 F.3d 783, 788 (8th Cir. 2008) (noting that alcohol and drug use are relevant to
analysis of voluntariness of confession).
But the record does not reveal any evidence that Harris was under the influence of any
mind-altering substance when he presented himself at the Mobile Police Department. Harris did
not so testify at the evidentiary hearing. Nor did Leketa Harris. The police officers’ testimony
was unequivocal that Harris did not appear to be impaired on the morning of October 4. As
Officer Nixon testified at trial, “I could not tell that he was under the influence of any kind of
drugs. I smelled no alcoholic beverage about him. He was steady on his feet. He seemed to
speak very well. I didn’t think he was under the influence of anything.” (Trial Transcript (doc.
87), at 63.) Officer Nixon was quite clear that “[i]f he would have been under any kind of
controlled substance or alcohol that I could detect, we would not have interviewed him.” (Id. at
85.) Officer Nixon echoed these same observations and impressions at the evidentiary hearing,
noting also that Harris seemed steady on his feet, spoke plainly, did not exhibit bloodshot eyes or
dilated pupils, and appeared responsive and in control. At trial, Lt. Taylor was equally emphatic
that Harris’s demeanor was such that he did not appear to be under the influence of drugs or
alcohol. As she testified, “Had he been under the influence or even had given the appearance of
being under the influence, there is no way we would have conducted, not in our office, an
interview or interrogation of Mr. Harris.” (Id. at 115.) This credible testimony has not been
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13 Appellate authorities support the conclusion that any motion to suppress Harris’s
statements on grounds that his intoxication rendered them involuntary would have been futile,
given these facts. See, e.g., Hubbard v. Haley, 317 F.3d 1245, 1253-54 (11 th Cir. 2003)
(defendant’s confession was not rendered involuntary by intoxication where witnesses testified
that defendant did not appear to be intoxicated when he gave statements at police station);
Grayson v. Thompson, 257 F.3d 1194, 1230 (11 th Cir. 2001) (denial of defendant’s motion to
suppress confessions on intoxication grounds was not error where officer testified that defendant
did not smell of alcohol, was not slurring his speech, and had a normal demeanor).
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effectively rebutted by petitioner.
In short, then, the Court finds no evidence that Harris was in a biologically or chemically
coercive mental state when he made the statements to law enforcement officers on October 4,
2004. The uncontradicted evidence before the Court is that he appeared to be sober and in full
control of his faculties. As the record does not support a conclusion that Harris was so impaired
by his abuse of cocaine, ecstasy and other controlled substances during the previous weekend
that his confession was unintelligent or involuntary, it could not have constituted ineffective
assistance for Harris’s trial counsel to refrain from filing a motion to suppress on an intoxication
theory.13
4. 	Whether Harris’s Confession Was Inadmissible Because of Coercion.
Next, Harris argued in his § 2255 filings that his counsel was constitutionally ineffective
for failing to move to suppress his October 4 statements on grounds they were coerced and,
therefore, inadmissible.
It is a matter of black-letter law that “[t]he Fifth Amendment prohibits the use of an
involuntary confession against a defendant in a criminal trial.” United States v. Thompson, 422
F.3d 1285, 1295 (11 th Cir. 2005). To be admissible, the statement must be “the product of a free
and deliberate choice, rather than intimidation, coercion or deception.” Id. (citations omitted).
“We determine whether a defendant’s statement is ‘involuntary’ under a ‘totality of the
circumstances’ test.” Taylor v. Singletary, 148 F.3d 1276, 1280 (11 th Cir. 1998); see also Harris
v. Dugger, 874 F.2d 756, 761 (11 th Cir. 1989) (“A confession is voluntary if, under the totality of
the circumstances, it is the product of the defendant’s free and rational choice.”). As a general
proposition, however, “[a]bsent any evidence of psychological or physical coercion on the part
of the agents, there is no basis for declaring [a defendant’s] statements and consent to search
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14 Harris’s testimony was that when he went into Lt. Taylor’s office, she instructed
him to stop lying and informed him that if he did not tell the truth, his wife would go to jail too.
According to Harris, Lt. Taylor repeated the threat to coerce him into signing the Miranda form
after he had already given his statement, such that Harris signed the form after the fact solely for
the purpose of keeping Leketa Harris out of jail.
15 Even if Harris’s testimony were credible that Lt. Taylor threatened to detain his
wife unless he confessed, that fact would be legally inadequate to justify suppression of his
statements in this context. The mere statement that a family member may be jailed if the
accused does not confess does not automatically render a confession involuntary absent a
showing that the defendant’s will was overborne. See, e.g., United States v. Gannon, 531 F.3d
657, 661-62 (8th Cir. 2008) (even if defendant’s testimony were true that detectives told him that
his ex-wife would be charged unless he confessed, that fact would not render his statements
involuntary in the absence of evidence that his will was overborne and his capacity for self-
determination critically impaired); United States v. Wyche, 307 F. Supp.2d 453, 464 (E.D.N.Y.
2004) (“A threat to a suspect to charge a third party with a crime, a crime that the third party is
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involuntary.” Thompson, 422 F.3d at 1297 (citing United States v. Barbour, 70 F.3d 580, 585
(11th Cir. 1995)).
Harris contends that his statements were coerced because MPD interrogators threatened
to put his wife in jail unless he told them the truth. 14 But the Court finds, as a factual matter, that
no such threat was ever made. During the evidentiary hearing, Officer Nixon credibly testified
that he neither told Harris nor heard anyone else tell Harris that Leketa Harris would be jailed
unless Harris told them the truth. Rather, Officer Nixon testified that at no time on October 4,
2004 did he hear anyone at the MPD raise their voices at Harris, shout at him, threaten or coerce
him in any way. Lt. Taylor similarly testified at the hearing that she never advised Harris that
his wife would go to jail if he failed to tell the truth. Based on direct observations of the
witnesses’ credibility and demeanor during the hearing, the Court credits the testimony of
Officer Nixon and Lt. Taylor on this point, and does not credit Harris’s testimony to the
contrary. There was no improper coercion or intimidation of Harris. At most, the record reflects
that Lt. Taylor exhorted Harris to tell the truth because he was going to jail anyway. Such an
admonition falls far short of rendering his statement involuntary. See United States v. Vera, 701
F.2d 1349, 1364 (11 th Cir. 1983) (“[A] mere admonition to the accused to tell the truth does not
render a confession involuntary.”); United States v. June, 2009 WL 464471, *1 (9th Cir. Feb. 25,
2009) (“A police officer’s repeated exhortations to tell the truth do not amount to coercion.”). 15
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also plausibly guilty of, does not make that suspect’s subsequent confession inadmissible. While
it would have been improper (and unchivalrous) to actually charge the pregnant woman under
the circumstances presented, it was not illegal for [police officers] to threaten [defendant] with
their willingness to do so.”); United States v. Rodgers, 186 F. Supp.2d 971, 976 (E.D. Wis. 2002)
(indicating that “a police officer’s suggestion of possible adverse consequences to a suspect’s
friend or loved one is not always improper,” such as where the suggestion is “an honest
statement of a possible outcome”); United States v. Ponce Munoz, 150 F. Supp.2d 1125, 1135
(D. Kan. 2001) (“Informing a defendant that ... his wife could go to jail ... if the defendant did
not cooperate does not render his confession involuntary when these events are merely
consequences of defendant’s illegal acts”). Harris’s testimony was simply that the words were
spoken, without elaborating on their coercive effect. Harris made no showing that his will was
overborne by the threat that his wife would be jailed, and the record evidence is to the contrary.
After all, the record reflects that Harris was not close with Leketa Harris at that time. They were
not living together, and there was even evidence that Harris was living with another woman.
Certainly, Harris never testified that the prospect of her going to jail was so painful and
emotionally charged that his will was overborne and he was compelled to confess. Moreover, it
is important to remember that Leketa Harris was hardly an innocent bystander. She bore
criminal culpability herself because Harris had drawn her into his illegal activities. The
information before the MPD officers was that, at a minimum, Leketa Harris had been complicit
in Harris’s acts of transporting and disposing of the drugs and guns at the church, such that it
was entirely plausible that she had committed a crime. It was more than plausible; indeed,
Leketa Harris ultimately pleaded guilty in federal court to the offense of misprision of a felony,
as a result of her unlawful conduct on October 3, 2004. Thus, there was plainly a reasonable
factual basis for Lt. Taylor to jail Leketa Harris that day, just as Harris testified she threatened to
do. In these circumstances, any suggestion to Harris that his wife might go to jail would have
been an accurate statement of fact, given Leketa Harris’s own criminal acts in connection with
the disposal of Harris’s drugs and guns. Therefore, even if the Court were to decide the
credibility question in Harris’s favor concerning the possible detention of his wife, the outcome
would be the same. His confession was not coerced, as a matter of law, and his constitutional
rights were not violated by his trial counsel’s failure to move to suppress that confession on
grounds of involuntariness or coercion.
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5. 	Conclusion.
Harris collaterally attacks his sentence in his § 2255 petition on the ground that his
attorneys should have filed a motion to suppress to keep out the deleterious admissions he made
to law enforcement officers on October 4, 2004. As the foregoing discussion reflects, however,
any motion to suppress that counsel might have filed on theories of Miranda violations,
intoxication, or coercion/threats would have been beset by glaring factual and legal infirmities,
and would not have succeeded. Inasmuch as Harris has identified no meritorious basis for any
motion to suppress, the Court cannot find that his lawyers’ failure to file such a motion was a
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course that no competent counsel would have taken under the circumstances. As such, petitioner
has failed to satisfy his burden of establishing constitutionally deficient performance, as required
to sustain an ineffective assistance claim. See, e.g., Gordon v. United States, 518 F.3d 1291,
1301 (11 th Cir. 2008) (to meet high burden of establishing that counsel’s performance was
deficient, “a petitioner must establish that no competent counsel would have taken the action that
his counsel did take”). This ground for Harris’s § 2255 motion is meritless.
B. 	Ineffective Assistance Claim Arising from Alleged Conflict of Interest.
The second ground for § 2255 relief identified by Harris is that “Attorney Brandyburg
was constitutionally ineffective due to a conflict of interest which deprived Mr. Harris of the
benefits of a cooperation based plea agreement offered by the United States.” (Doc. 155, at 6.)
Harris’s theory is that Brandyburg was representing individuals named James Demetrius “J.D.”
Hunt and Samuel Lee Jones, Jr., simultaneously with his representation of Harris. According to
petitioner’s filings, this representation of Hunt and Jones created a conflict because Harris, in
attempting to secure a plea agreement with the Government based on cooperation, possessed
incriminating information as to both Hunt and Jones. Harris’s filings alleged that when he
attempted to disclose such information to the Government, Brandyburg suspended the debriefing
interview and steered Harris on a course for trial, rather than a guilty plea, all to protect his other
clients at Harris’s expense.
1. 	Findings of Fact Concerning Conflict of Interest Theory.
The facts that emerged during the evidentiary hearing were not consistent with this
theory of malfeasance. Brandyburg, an experienced criminal defense attorney, testified that the
first time he represented Hunt was when he was appointed on May 27, 2005, and that he had
never even heard of Hunt before that date. By contrast, the events concerning Harris’s proffer
and debrief took place in mid-April 2005, approximately six weeks before Brandyburg ever
came to represent Hunt. None of this evidence was controverted or challenged at the hearing.
Thus, the record plainly establishes that Brandyburg began representing Hunt well after the plea
negotiations and proffer events that underlie Harris’s conflict of interest allegations in the § 2255
petition.
As for Jones, the circumstances were somewhat different. Brandyburg testified that he
represented Jones in a series of juvenile, civil and criminal matters in state court beginning in
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16 Brandyburg also testified that Harris never mentioned Jones during this debrief
session.
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approximately 2000. This ongoing legal representation encompassed state-court charges of
possession of marijuana and drug paraphernalia, in which matters Brandyburg filed a notice of
appearance on April 20, 2005, as well as a federal controlled substances prosecution in which
Brandyburg began representing Jones in early May 2005. Without question, at the time of
Harris’s mid-April 2005 proffer, Brandyburg had a longstanding attorney-client relationship with
Jones, and was apparently actively representing him in a drug case pending in state court. Based
on this testimony, the Court finds that Jones was an ongoing client of Brandyburg’s, and that
Brandyburg represented Jones at the same time that he was representing Harris in plea
negotiations with the Government.
Of course, to find that Brandyburg had temporally overlapping attorney-client
relationships with Harris and Jones is not necessarily to find that Brandyburg’s representation of
Harris was compromised by a conflict of interest. The critical facts relate to Harris’s debrief
session and the circumstances that led to its termination and the abandonment of Harris’s
cooperation/guilty plea strategy. Brandyburg testified that Government agents unilaterally
terminated Harris’s debriefing in abrupt fashion because they did not believe Harris was being
truthful.16 Brandyburg’s recollections on this point are bolstered by the testimony of the
Government’s case agent, Cpl. Joe Wolfe of the Mobile Police Department. Cpl. Wolfe testified
that he participated in a debrief session with Harris and his attorney, but that Cpl. Wolfe called
the interview off shortly after it began because he and other agents who were present felt that
Harris was not providing truthful information.
Harris’s account stands in stark contrast to those of his former attorney and the
Government’s case agent. According to Harris, he and Brandyburg met with Officer Nixon for
purposes of cooperation. At that meeting, Harris testified, he provided detailed information
concerning his drug suppliers, only to have Brandyburg suddenly cut off the proffer after Officer
Nixon showed Harris photographs of Jones and other suspects. According to Harris, Brandyburg
explained this conduct by saying that Harris had given enough information. Before the
debriefing ended, Harris said, he shared with the Government what he knew about Jones, namely
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17 Part and parcel of Harris’s conflict of interest theory is the notion that Brandyburg
not only derailed the debriefing, but also prevented Harris from entering into a cooperation-
based plea agreement, all for the sake of protecting Jones. Harris blames Brandyburg for the fact
that Harris went to trial even though the Government was offering him a favorable plea
arrangement under which he might have served as little as five years in prison, rather than the
300 months he ultimately received after trial. (See Defendant’s Exh. 1.) By all appearances,
Harris himself caused that plea offer to be withdrawn by failing to cooperate truthfully. More
importantly, even if that offer had remained on the table, the facts do not support Harris’s
contention that he went to trial only because of Brandyburg’s loyalties to Jones. The credible
evidence at the hearing was Brandyburg’s testimony that the reason Harris never signed the
Government’s proposed plea agreement and factual resume was that Harris had made the
decision to go to trial, against the strong advice of his attorneys that he enter a plea of guilty and
cooperate. In other words, Harris went to trial not because he was sandbagged, misled or cajoled
by his lawyers not to follow the path of cooperation, but because he ignored their advice and
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that he had seen Jones on a number of occasions with drugs, and had had opportunities to buy
drugs from Jones, but had not done so because he was afraid that Jones would tell on him. This
version of the facts is not credible, and does not make sense. Had Harris been supplying good
information to law enforcement at this debriefing, and had the officers believed him, there
should be records to confirm it. There are none. Had an attorney squelched his own client’s
cooperation in such a sudden, unprovoked, irrational and overt way, the Court is confident that
the Government would have followed up appropriately with defense counsel and, if necessary,
the Court to ascertain what was happening. That did not occur. Moreover, Harris admits that he
had already told the Government what he knew about Jones. If Brandyburg were truly trying to
protect Jones, why would he have waited to terminate the interview until after Harris had shared
what little information he had about Jones? It does not make sense that Brandyburg would so
forcefully close the barn door after the horses had already escaped. And, more fundamentally,
the fact remains that the Government agents did not believe anything Harris was telling them.
He had already revealed a propensity for dishonesty by virtue of the three different stories he had
floated to the MPD on October 4, 2004. Nothing he said at the debrief session helped his cause
in the eyes of the Government or altered their impression of him as a chronically untrustworthy
witness. Based on the foregoing, the Court finds that Harris’s debriefing was terminated not by
Brandyburg because of a clandestine conflict, but by the Government because of their
dissatisfaction with the quality and sincerity of Harris’s cooperation. 17
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decided to roll the dice at trial with an ill-conceived “religious revelation” defense that he hoped
would set him free, even though Brandyburg warned him that such a defense was highly
problematic and likely to fail. That Harris’s risky (and perhaps even foolhardy) decision to go to
trial rather than taking the plea deal did not pan out as he had hoped is hardly imputable to his
counsel as a constitutional violation, particularly where Harris’s decision ran contrary to his
lawyers’ recommendations.
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2. 	Conclusions of Law Concerning Conflict of Interest Theory.
To obtain relief on a § 2255 motion predicated on a conflict of interest impairing one’s
Sixth Amendment right to counsel, “a defendant must show first, that his attorney had an actual
conflict of interest, and second, that the conflict adversely affected counsel’s performance.”
Pegg v. United States, 253 F.3d 1274, 1277 (11 th Cir. 2001). To satisfy the “actual conflict”
requirement, a petitioner “must show something more than a possible, speculative or merely
hypothetical conflict ... [He] must make a factual showing of inconsistent interests and must
demonstrate that the attorney made a choice between possible alternative [courses] of action,
such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.”
Reynolds v. Chapman, 253 F.3d 1337, 1342-43 (11 th Cir. 2001) (citations omitted); see also
Quince v. Crosby, 360 F.3d 1259, 1264 (11 th Cir. 2004) (“An ‘actual conflict’ of interest occurs
when a lawyer has ‘inconsistent interests.’”). To satisfy the “adverse effect” requirement, “a
habeas corpus petitioner must show: (1) the existence of a plausible alternative defense strategy
or tactic that might have been pursued; (2) that the alternative strategy was reasonable under the
facts; and (3) a link between the actual conflict and the decision to forgo the alternative strategy
of defense.” Pegg, 253 F.3d at 1278; see also Quince, 360 F.3d at 1264.
Clearly, there was no conflict of interest with respect to James Demetrius Hunt.
Brandyburg was not representing Hunt in April 2005, and did not even know who Hunt was at
the time of Harris’s debrief and plea negotiation. Moreover, Harris failed to present evidence at
the hearing that Hunt’s name ever surfaced during the proffer session, that the Government
agents ever asked him about Hunt, or that he possessed any inculpatory information concerning
Hunt. On that basis, the Court finds that Brandyburg did not have any actual conflict with
respect to Hunt that might have impaired Harris’s Sixth Amendment right to counsel.
As for Sam Jones, the Court likewise concludes that Harris has failed to show that
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Brandyburg was rendered ineffective by a conflict of interest. As an initial matter, the
undersigned is not convinced that Brandyburg was facing “inconsistent interests” as between
Harris and Jones. To be sure, Harris had an interest in providing the Government with whatever
inculpatory information he had concerning Jones, and Jones of course had a countervailing
interest in no such information being provided. But the credible testimony from the hearing is
that Jones’ name never came up. Harris was neither asked about Jones nor offered any
information about Jones during the debrief. That being the case, Brandyburg was never placed
in a position of split loyalties, where he had to choose between protecting Jones and helping
Harris. The actual conflict never materialized. Even if it had, Harris has failed to show that any
such conflict adversely affected Brandyburg’s performance, which is a necessary element to
establishing a constitutional violation. Accepting Harris’s testimony at face value, Brandyburg
did not stop him from telling the Government what he knew about Jones, which was not much
because Harris denied ever purchasing drugs from Jones but instead indicated merely that he saw
Jones in the neighborhood with drugs. Thus, Harris’s story is that Brandyburg did not prevent
him from disclosing to the Government everything he knew about Jones, notwithstanding the
alleged conflict. Additionally, the Court has made a finding of fact that it was the Government,
and not Brandyburg, who brought a premature halt to Harris’s debrief session because they
thought he was lying. That fact shows that Brandyburg did not stand in the way of Harris’s
cooperation and did not scuttle Harris’s cooperation to help Jones. As such, there was no
adverse effect from any actual conflict that Brandyburg may have faced as between Harris and
Jones, and Harris’s request for § 2255 relief on the ground that his attorney labored under a
conflict of interest that rendered him constitutionally ineffective is unfounded.
C. 	Ineffective Assistance Claim Arising from Defendant’s Right to Testify.
The third and final ground for relief identified in the § 2255 petition is Harris’s
contention that his lawyers would not allow him to testify at trial. As the petition frames the
issue, Harris maintains that he “was denied the effective assistance of counsel during his trial
when attorney Brandyburg refused to allow Mr. Harris to testify truthful [sic] in violation of
Harris’s Fifth Amendment right.” (Doc. 155, at 8.) In his supporting declaration, Harris
elaborates on this claim by asserting that counsel had convinced him that it was up to them, and
not up to him, whether he would take the stand at trial. (Harris Decl. (doc. 155-2), ¶ 22.)
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18 For a defense attorney simply to tell the defendant that the latter has a right to
testify is not sufficient to satisfy the constitutional minimum level of performance. See McGriff,
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The law is clear that “a criminal defendant has a fundamental constitutional right to
testify in his or her own behalf at trial. This right is personal to the defendant and cannot be
waived either by the trial court or by defense counsel.” United States v. Teague, 953 F.2d 1525,
1532 (11 th Cir. 1992) (en banc); see also McGriff v. Dep’t of Corrections, 338 F.3d 1231 (11 th
Cir. 2003) (“The law is well-established in this Circuit that a criminal defendant has a
fundamental constitutional right to testify in his own defense.”). The Eleventh Circuit has held
that “an ineffective assistance of counsel claim is the appropriate vehicle for a criminal
defendant to raise an alleged violation of his right to testify.” United States v. Van De Walker,
141 F.3d 1451, 1452 (11 th Cir. 1998); see also Teague, 953 F.2d at 1534 (similar). That is
precisely the form that Harris’s claim has taken; therefore, the Court evaluates this ground for §
2255 relief (i.e., that counsel violated his constitutional rights by not allowing him to testify at
trial) by reference to the legal standards set forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland provides that a petitioner making a claim of
ineffective assistance of counsel “must show that: (1) counsel’s performance was deficient
because it fell below an objective standard of reasonableness; and (2) the deficient performance
prejudiced the defense.” McClain v. Hall, 552 F.3d 1245, 1250 (11 th Cir. 2008) (citation
omitted).
With respect to deficient performance, the Eleventh Circuit has recognized that a
lawyer’s performance may fall outside the range of competence demanded of attorneys in
criminal cases if either (a) “defense counsel refused to accept the defendant’s decision to testify
and would not call him to the stand;” or (b) “defense counsel never informed the defendant of the
right to testify and that the ultimate decision belongs to the defendant.” Teague, 953 F.2d at
1534; see also Gallego v. United States, 174 F.3d 1196, 1197 (11 th Cir. 1999) (counsel’s
performance is deficient for Strickland purposes “[w]here counsel has refused to accept the
defendant’s decision to testify and refused to call him to the stand, or where defense counsel
never informed the defendant of his right to testify and that the final decision belongs to the
defendant alone”) (emphasis added).18 Harris has alleged in his filings, and testified at the
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338 F.3d at 1237 (“Counsel must advise the defendant (1) of his right to testify or not testify; (2)
of the strategic implications of each choice; and (3) that it is ultimately for the defendant himself
to decide whether to testify. ... Absent such advice, the defendant cannot effectively waive his
right to testify.”).
19 At most, Brandyburg testified that his general practice is to tell defendants that
they have a constitutional right to testify, but that in most cases they would be better off not
testifying because of the potential for adverse information (such as prior convictions) to emerge
on cross-examination. Brandyburg did not testify as to whether he did or did not follow this
general practice in Harris’s case, and never indicated whether he did or did not inform Harris
that the final decision of whether or not to testify was Harris’s to make.
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hearing, that Brandyburg’s performance was deficient in both of these respects. In particular,
Harris stated that his attorneys never told him that the decision of whether or not to testify was
his alone, and that his attorneys refused to honor his express wish to take the stand at trial.
While the Government offered substantial evidence at the evidentiary hearing that Harris agreed
with Brandyburg’s position that he should not testify, there was no evidence to rebut Harris’s
testimony that Brandyburg led him to believe that the final decision rested with the lawyers.19
As a result of this omission, the only information this Court has before it concerning what
Brandyburg told Harris about his right to testify is Harris’s own testimony that Brandyburg never
advised him that the final decision of whether or not to testify was Harris’s. In this incomplete
and undeveloped posture, the record leaves significant unanswered questions as to whether
counsel rendered deficient performance under Teague and its progeny.
That said, it is not necessary to address the deficient performance prong for this particular
§ 2255 claim. Indeed, “a court may decline to reach the performance prong of the ineffective
assistance test if convinced that the prejudice prong cannot be satisfied.” Waters v. Thomas, 46
F.3d 1506, 1510 (11 th Cir. 1995); see also McClain, 552 F.3d at 1251 (“We may decline to
decide whether the performance of counsel was deficient if we are convinced that [defendant]
was not prejudiced.”); Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice ... that course should be followed.”). This is
just such a circumstance. The Court having the firm conviction that the Strickland prejudice
standard is not met here, no determination need be made as to the sufficiency of counsel’s
performance in advising Harris of his right to testify.
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20 See Franklin v. United States, 2007 WL 1600028, *4-5 (11th Cir. June 5, 2007) (in
right-to-testify context, explaining defendant must show prejudice under Strickland by
establishing that it was reasonably probable that defendant’s testimony would have changed the
outcome of the trial, and rejecting defendant’s suggestion on appeal that only some lesser
threshold of proof was needed in the right-to-testify context); United States v. Tavares, 100 F.3d
995, 998 (D.C. Cir. 1996) (declining to find that deficient performance resulting in denial of
defendant’s right to testify constitutes prejudice per se, but instead adhering to Strickland test of
“whether it is reasonably probable that the defendant’s testimony would have changed the
outcome of the trial in his favor”); Haynes v. United States, 451 F. Supp.2d 713, 725 (D. Md.
2006) (“even counsel’s total failure to advise a defendant of his right to testify does not
constitute prejudice per se”); Arins v. McNeil, 2008 WL 2264503, *12 (S.D. Fla. Mar. 28, 2008)
(“Where the record establishes no reasonable probability that the defendant’s asserted testimony
would have changed the outcome of the trial, the defendant has failed to make a prima
facie showing of prejudice.”).
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To show prejudice under Strickland, Harris must show that, but for any deficient
performance by counsel as to his right to testify, “there is a reasonable probability that ... the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Hannon v. Secretary, Dep’t of Corrections,
562 F.3d 1146, 1151 (11 th Cir. 2009) (citing Strickland, 466 U.S. at 694); see also Wood v. Allen,
542 F.3d 1281, 1310 (11 th Cir. 2008) (“A petitioner must affirmatively prove prejudice.”)
(citation and internal quotation marks omitted); Lambrix v. Singletary, 72 F.3d 1500, 1508 (11 th
Cir. 1996) (“a defense attorney renders ineffective assistance if he fails to adequately inform his
client of the right to testify, and that failure prejudices the defense”) (emphasis added).
To satisfy his burden of showing prejudice, Harris indicated at the evidentiary hearing
that he wanted to testify at trial and suggested that he would have testified if he had known the
decision was his to make. But simply to say that he would have testified had he known the
decision was his is not enough to establish prejudice. There is no per se or presumed prejudice
in this context. 20 Whether Harris was prejudiced by his lawyer’s alleged deficient performance
concerning his right to testify hinges on what Harris would have told the jury at trial and whether
that testimony, when weighed against the other evidence before the jury, had a reasonable
probability of making a difference in the outcome. The Court underscored the importance of
these questions in its Order setting this matter for hearing, wherein it opined as follows: “the
Court cannot assess whether it is reasonably probable that Harris’s testimony would have
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21 At most, Harris alluded vaguely to changes in his life and indicated that he was
the only one who could tell the jury about what had happened to him to make him change his
ways away from his drug-dealing past. So apparently Harris wanted to tell the jury that he had
experienced a religious revelation which prompted him to disavow his controlled substances
activities and turn them in at the church. The fundamental defect with such testimony is that it
would not constitute a defense to the charges against him. Even if Harris actually did experience
a sudden spiritual awakening in the midst of his cocaine binge of October 1 and 2, 2004, the
compelling evidence remained that (1) he was an admitted longtime drug dealer; (2) he was in
possession of distribution quantities of cocaine and multiple firearms on the morning of October
3, 2004; (3) he lied repeatedly on the morning after his alleged religious revelation in an attempt
to deceive law enforcement officers; and (4) he ultimately admitted that he brought the drugs and
guns to church for the purpose of avoiding detection and capture by law enforcement officers
whom he believed were about to arrest him. It appears that Harris essentially wanted to give the
jury a ground for nullification by evoking their sympathy as a newly-saved Christian, despite his
previous drug-dealing ways. Such a ploy had no meaningful likelihood of success, particularly
where his testimony would have been accompanied by the introduction of evidence on cross-
examination of his prior felony drug conviction, where the jury was aware of the three other
explanations for his conduct he had given to the MPD, and where the record contained abundant
evidence of Harris’s propensity for dishonesty and calculating, self-serving subterfuge.
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changed the outcome of the trial in his favor without hearing and evaluating the credibility of his
testimony on the witness stand.” (Order (doc. 168) dated January 6, 2009, at 18.) At the
hearing, however, Harris made no proffer of what he would have told the jury at trial had he
testified. Harris therefore chose to forego the opportunity to allow this Court to assess the
credibility of the proffered testimony he would have presented at trial. This omission, in
contravention of the January 6 Order, compels a conclusion that Harris has failed to meet his
burden of establishing prejudice on the right-to-testify issue. 21
Harris has failed to meet his burden of demonstrating a reasonable probability that the
outcome of his trial would have been different had he been permitted to testify at trial; therefore,
he has not satisfied the Strickland prejudice standard, and this ground for relief set forth in his §
2255 petition is without merit.
III. 	Conclusion.
For all of the foregoing reasons, petitioner Jerome Harris, Jr.’s second amended motion
to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 155) is denied. A
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22 The Court appointed counsel, Paul Bradley Murray, Esq., to represent Harris in
connection with the evidentiary hearing in this matter, pursuant to Rule 8(c) of the Rules
Governing Section 2255 Proceedings. That hearing having been concluded, and there being no
circumstances that might warrant continued involvement of counsel in these proceedings, the
appointment of Murray to represent Harris herein is terminated.
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separate judgment will enter.22
DONE and ORDERED this 11th day of May, 2009.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
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