Harris v. United States

          MEMORANDUM AND ORDER

          PAUL W. GRIMM, UNITED STATES DISTRICT JUDGE

         On July 22, 2015, Petitioner Leonaldo Harris pleaded guilty to conspiracy to distribute and possess with intent to distribute 1, 000 kilograms or more of a mixture and substance containing a detectable amount of marijuana under 21 U.S.C. § 846, for which he currently is serving a 10-year sentence. See Plea Agreement 1, 8, ECF No. 163; J. 2, ECF No. 229. He has filed this habeas action to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255(a). For the reasons explained below, it is denied.

         Factual Background

         In the statement of facts accompanying his plea agreement, Mr. Harris acknowledged that between September 2012 and April 2013 he made arrangements to ship marijuana from California to Maryland, where it was to be repackaged and distributed. See ECF No. 163-1. Authorities apprehended him on April 19, 2013, as he fled the scene of a controlled delivery of previously seized marijuana. See id.

         Mr. Harris's drug shipments had been discovered two days earlier, when employees of YRC Freight ("YRC"), a freight shipping company, identified two suspicious parcels at a YRC facility in Pennsylvania. See Pa. Incident Report, ECF No. 64-8. A YRC weights and inspection coordinator opened and searched Mr. Harris's pallet at an offload site in Pennsylvania and discovered hundreds of kilograms of marijuana. See Sentencing Hr'g Tr. 8, ECF No. 238. Soon after, a YRC security manager called the Pennsylvania State Police, which obtained a search-and-seizure warrant. See Mot. to Suppress 4, ECF No. 64; Pa. Incident Report. The Pennsylvania State Police contacted the Maryland State Police, which likewise obtained a search-and-seizure warrant and took control of the two pallets. See Pa. Incident Report; ECF No. 64-9.

         After pleading guilty, Mr. Harris moved to withdraw his guilty plea. See ECF No. 171. He went back and forth on this decision over the next several months, first moving to withdraw the withdrawal before finally attempting to resubmit it in a new motion. See ECF Nos. 187, 222.1 denied Mr. Harris's motion to resubmit the withdrawal of his guilty plea. See ECF No. 224. The Fourth Circuit denied Mr. Harris's appeal on April 5, 2017. See ECF No. 243. Mr. Harris did not seek certiorari.

         Pre-Trial Motions

         Mr. Harris filed a number of pretrial motions, but the two most relevant at present are his November 4, 2013, motion to suppress, ECF No. 64, and his June 20, 2014 motion to reopen the record, ECF No. 122.

         The Motion to Suppress

         The motion to suppress challenged the evidence seized by the YRC weights and inspection coordinator, arguing it was the fruit of an unconstitutional warrantless search. See Mot. to Suppress 9. Mr. Harris argued that YRC employees were acting as instruments of the Government when they inspected the pallets. See Mot. to Suppress Reply 2-3, ECF No. 68. Mr. Harris pointed to YRC's agreement to cooperate with a federal cargo security program known as the Customs-Trade Partnership Against Terrorism (C-TPAT) as evidence that the Government had "knowledge and acquiesce" with regard to YRC's actions. Id. at 4.

         I denied the motion to suppress on May 16, 2014, after a six-day hearing that featured 11 witnesses and 38 exhibits. In my ruling, I explained that Mr. Harris had not met his burden of showing that YRC acted as an agent or instrumentality of the Government, and that YRC's voluntary participation in the C-TPAT did not constitute mandated searching. See Jan. 13, 2014 Hr'g Tr. 229-270, ECF No. 80; May 15, 2014 Hr'g Tr. 47, ECF No. 120.

         The Motion to Reopen the Record

         Mr. Harris later filed his motion to reopen the record, urging me to reconsider my ruling on the motion to suppress in light of "new" evidence that, he said, showed the YRC employees had, indeed, acted as an "instrument of the Government." Mot. to Reopen R. 8-10 & n.4. In particular, the motion said the defense's expert, Barry Brandman, had reviewed his old files and discovered a C-TPAT PowerPoint presentation entitled "Supply Chain Security in a Post 9/11 Environment." See Id. at 10; PowerPoint, ECF No. 122-3. The PowerPoint, made available to C-TPAT participants by the Government, contained suggestions for C-TPAT members (such as YRC) to be alert for during inspection of suspected contraband. See PowerPoint 2-6.

         The motion explained that the PowerPoint was not previously introduced because it was not publicly available on the U.S. Customs and Border Protection ("CBP") website and defense counsel did not have access to C-TPAT's web portal.^[2] See Mot. to Reopen R. 10. The Government, in response, argued that since an expert witness had access to the PowerPoint from his "old files" after the Motion to Suppress hearing, it must have been available to defense counsel prior the hearing. See ECF No. 132. The defense disputed the point, saying

[I]t was not a lack of diligence on the part of the defense that resulted in the belated discovery and introduction of this document. After several subpoenas and painstaking research, the defense produced what the Government deems "thousands of pages of exhibits" in support of the argument that YRC's actions were fairly attributable to the Government.

Mot. to Reopen R. Reply 5, ECF No. 133. In addition, Mr. Harris's then counsel argued that the specific issue addressed by the PowerPoint became clear only after the Court's opinion on the motion to suppress:

The Court's opinion ... made clear that the Court specifically required evidence establishing not only that members be explicitly directed to open and/or search but also required explicit evidence showing that "search", "inspect", "detect", and "open" were synonymous and included the act of opening. Without the Court's opinion, there was no reason to seek this document that the defense did not know existed as the defense believed the record was already clear that by repeatedly instructing YRC to "detect" or "inspect" ...