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 Motion for
Certificate of Appealability, construed from his Notice of Appeal (doc. 175). See, e.g., Edwards
v. United States, 114 F.3d 1083, 1084 (11 th Cir. 1997) (“District courts must treat notices of
appeal filed by petitioners following a denial of ... a section 2255 petition as applications for
COAs.”). Also pending is Harris’s filing styled “Motion for Release of Evidentiary Hearing
Transcripts” (doc. 176).
Petitioner has no absolute right to either a Certificate of Appealability (“COA”) or a free
transcript. With respect to the former, it is well established that “[a] COA may issue only if the
applicant has made a substantial showing of the denial of a constitutional right.” Pagan v.
United States, 353 F.3d 1343, 1346 (11 th Cir. 2003) (citation omitted); see also United States v.
Futch, 518 F.3d 887, 895 (11 th Cir. 2008) (explaining that grant of COA is appropriate only if
district court’s ruling on constitutional claims presented in § 2255 petition is “debatable amongst
jurists of reason”) (citation omitted). With respect to the latter, “[t]he established rule is that the
expenditure of public funds is proper only when authorized by Congress .... Where Congress has
addressed the subject as it has here, and authorized expenditures where a condition is met, the
clear implication is that where the condition is not met, the expenditure is not authorized.”
United States v. MacCollom, 426 U.S. 317, 321, 96 S.C. 2086, 48 L.Ed.2d 666 (1976). As a
matter of statute, a § 2255 petitioner is entitled to a transcript at public expense in connection
with an in forma pauperis petition or appeal only “if the trial judge or a circuit judge certifies
that the suit or appeal is not frivolous and that the transcript is needed to decide the issue
Case 1:05-cr-00023-TFM-C Doc# 183 Filed 07/06/09 Page 1 of 5 PageID#
<pageID>

1 See generally Jefferies v. Wainwright, 794 F.2d 1516, 1518 (11 th Cir. 1986)
(“Denial of a free transcript to an indigent defendant is unconstitutional only where the transcript
is valuable to the defense and no functional alternatives exist.”); Walker v. United States, 424
F.2d 278, 279 (5th Cir. 1970) (“A federal prisoner is not entitled to obtain copies of court records
at Government expense for the purpose of searching the record for possible error.”).
2 Harris also protests that he was not allowed to call Pastor Joe Johnson as a
witness at the evidentiary hearing because that witness had been present in the courtroom
throughout the hearing, even though the Government was allowed to call as a witness Officer Joe
Wolfe, who had also been present in the courtroom. This claim of unfairness is entirely without
-2-
presented by the suit or appeal.” 28 U.S.C. § 753(f).1
On June 16, 2009, the undersigned entered an Order (doc. 177) requiring Harris to
identify his grounds for appeal so that the Court could ascertain (a) whether Harris has made a
substantial showing of the denial of a constitutional right that might entitle him to a COA with
respect to any of those issues to be raised on appeal, and (b) whether Harris’s appeal is non-
frivolous and the transcript is needed to decide the issues presented by his appeal. In response,
Harris timely filed an eight-page handwritten document styled “Supplement Motion for
Certificate of Appealability and Supplement Motion for Release of Evidentiary Hearing
Transcripts” (doc. 181), wherein he purports to identify his grounds for appeal.
Although it is difficult to discern the precise issues that Harris intends to raise on appeal
from his rambling submission, it appears that he intends to present the following arguments to
the Eleventh Circuit on appeal of the denial of his § 2255 motion: (1) the Court’s finding of fact
that Officer Nixon gave Harris Miranda warnings at the outset of their interview was incorrect,
(2) the Court’s finding that Harris executed a written waiver of his Miranda rights prior to any
substantive questioning by Lt. Taylor was incorrect, (3) Harris’s confession was involuntary
because he was under the influence of narcotics, (4) Harris’s confession was coerced by the
threat that his wife would go to jail unless he cooperated, (5) Government witnesses perjured
themselves (and Harris himself testified truthfully) concerning the conflict of interest issue, (6)
Harris’s constitutional rights were violated when his lawyer refused to allow him to testify at
trial, and (7) the Court erred at the § 2255 evidentiary hearing by allowing the Government to
introduce evidence of complaints Harris had brought to the Alabama State Bar concerning his
former attorneys.2
Case 1:05-cr-00023-TFM-C Doc# 183 Filed 07/06/09 Page 2 of 5 PageID#
<pageID>

merit. The Government properly invoked the witness sequestration rule found at Rule 615,
Fed.R.Evid., otherwise known in this District Court as “The Rule,” at the outset of the hearing.
Pastor Johnson was disqualified from testifying because of his presence in the courtroom in
contravention of The Rule. See Rule 615 (“At the request of a party the court shall order
witnesses excluded so that they cannot hear the testimony of other witnesses ....”). By contrast,
Officer Wolfe was exempt from the ambit of The Rule because of his status as the Government’s
case agent. See, e.g., United States v. Butera, 677 F.2d 1376, 1381 (11 th Cir. 1982) (case agent
“was clearly exempted under Rule 615(2)”). Harris’s objection on this point is unfounded.
3 In the context of this pending COA request, and in view of the extensive
expenditure of judicial resources on Harris’s § 2255 petition to date, this Court will not embark
on an exhaustive point-by-point rebuttal of the numerous factual inaccuracies and logical
fallacies set forth in Harris’s supplemental filing. By way of example, however, Harris now
suggests that Detective Sanders’ testimony at the evidentiary hearing that he believed Harris’s
story (in which Harris explained the numerous drugs and guns in his possession by saying he had
taken them from kids on the street) contradicted Detective Sanders’ trial testimony that he
suspected Harris of wrongdoing because his name rang a bell relating to an ongoing
investigation. Detective Sanders testified to no such thing at trial; to the contrary, his trial
testimony was that “what he had done was at that point to my knowledge an admirable thing”
and “he done a great thing.” (Trial Transcript (doc. 87), at 26, 48.) His evidentiary hearing
testimony echoed his trial testimony on this point, and there is no inconsistency. Similarly,
Harris’s supplemental filing takes issue with the judicial finding that Harris testified to having
told the Government incriminating information about Samuel Jones, insisting that he “never
said” that. (Doc. 181, at 6.) This contention is simply false. At the hearing, Harris expressly
and unequivocally testified that he had informed the Government of the (limited) information he
-3-
With respect to Harris’s request for a COA, the Court finds that none of the issues he has
identified for appeal are debatable amongst jurists of reason or are otherwise “adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct.
1595, 146 L.Ed.2d 542 (2000). The bulk of Harris’s objections to the Order (doc. 172) denying
his § 2255 motion concern factual findings made by the Court following a comprehensive
evidentiary hearing that exceeded the duration of Harris’s trial. Harris balks that the Court found
law enforcement officers’ testimony credible, and disputes the undersigned’s determination that
his testimony was not credible on various points. In advancing these arguments in his
supplemental filing, Harris contradicts his own sworn testimony from the hearing, distorts the
testimony of law enforcement officers to suit his purposes, and fixates on inconsequential details
(e.g., the location of a debrief session, rather than its results) that reasonable witnesses might
naturally misremember at an evidentiary hearing conducted some four years after the fact.3 Of
Case 1:05-cr-00023-TFM-C Doc# 183 Filed 07/06/09 Page 3 of 5 PageID#
<pageID>

knew concerning Jones’ drug activities. Harris cannot create a colorable issue for appeal by
disregarding or disavowing his own sworn testimony.
-4-
course, Harris’s assignments of error on appeal that are predicated on this Court’s factual
findings will be reviewed for clear error. See, e.g., Thomas v. United States, --- F.3d ----, 2009
WL 1856048, *2 (11 th Cir. June 30, 2009) (“In a Section 2255 proceeding, we review ... factual
findings under a clear error standard.”) (citations omitted); Garcia v. United States, 278 F.3d
1210, 1211 (11th Cir. 2002) (“On appeal, we review a district court’s findings of fact in a 28
U.S.C. § 2255 proceeding for clear error ....”). Upon consideration of Harris’s challenges to this
Court’s findings of fact, the undersigned is of the opinion that no reasonable jurist could
conclude on this record that those findings were clearly erroneous; therefore, no COA is
warranted on Harris’s objections to those factual determinations.
Aside from findings of fact, Harris indicates that he wishes to appeal certain conclusions
of law, as well, on issues such as his intoxication theory for suppression of his confession, his
coercion theory for suppression, and his claim that counsel was ineffective in not allowing him
to testify at trial. The Order denying Harris’s § 2255 petition set out in clear terms the legal
basis for each of those determinations. In particular, the Court explained that Harris’s
intoxication contention failed because there was no evidence in the record that Harris was high at
the time of his inculpatory statements, much less that his interrogators knew or reasonably
should have known that he was under the influence; that his coercion theory was baseless
because no threats were made and, even if they were, there was no showing that Harris’s will
was overborne so as to render his confession involuntary; and that any deficient performance by
Harris’s trial counsel as to his right to testify was unavailing because Harris made no showing of
prejudice. The Court is of the opinion that none of these conclusions are debatable among jurists
of reason; therefore, Harris’s request for a COA is denied as to those purported grounds for
appeal.
Finally, Harris announces a new issue that he intends to raise on appeal, namely, that this
Court erred by allowing the Government to introduce evidence of the litany of bar complaints
that Harris had made against his former attorneys. But the Order denying Harris’s § 2255
motion did not mention those bar complaints, and this Court did not rely on them in any way in
Case 1:05-cr-00023-TFM-C Doc# 183 Filed 07/06/09 Page 4 of 5 PageID#
<pageID>

-5-
making that ruling. Therefore, any error that may be ascribed to the admission of those
documents at the hearing is harmless, and cannot form a viable basis for issuance of a COA.
See, e.g., United States v. Hornaday, 392 F.3d 1306, 1316 (11 th Cir. 2004) (error is harmless
where court can say “with fair assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substantially swayed by the error”)
(citation omitted).
For all of the foregoing reasons, petitioner’s request for a COA is denied.
Notwithstanding the above, the Court recognizes that a transcript of the evidentiary
hearing held on April 8, 2009 is reasonably necessary to decide Harris’s challenges on appeal to
the credibility determinations and findings of fact made at the evidentiary hearing. Moreover,
the Court cannot say that Harris’s second-guessing of these findings of fact is frivolous for
purposes of 28 U.S.C. § 753(f). But that statute is very clear that § 2255 petitioners are not
entitled to free transcripts unless they are “persons permitted to sue or appeal in forma pauperis.”
28 U.S.C. § 753(f). To date, Harris has not requested leave to appeal in forma pauperis, nor has
he complied with the statutory requirements for doing so. Indeed, a prisoner seeking in forma
pauperis status must submit a financial affidavit regarding his prisoner account balance. See 28
U.S.C. § 1915(a)(2) (prisoner who wishes to proceed without prepayment of fees must “submit a
certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for
the 6-month period immediately preceding the filing of the ... notice of appeal”). Harris has not
done so. Because these prerequisites have not been satisfied, Harris’s “Motion for Release of
Evidentiary Hearing Transcripts” (doc. 176) is denied, without prejudice to his ability to renew
the motion upon satisfaction of the threshold requirements set forth above.
DONE and ORDERED this 6th day of July, 2009.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
Case 1:05-cr-00023-TFM-C Doc# 183 Filed 07/06/09 Page 5 of 5 PageID#
<pageID>