In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-3408

JEFFERY HARRIS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 01 C 1484—Larry J. McKinney, Chief Judge.

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ARGUED DECEMBER 12, 2003—DECIDED MAY 3, 2004

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Before COFFEY, RIPPLE and KANNE, Circuit Judges.

KANNE, Circuit Judge.

I. Background

Jeffery Harris pled guilty to one count of conspiracy to

possess with intent to distribute cocaine and cocaine base,

21 U.S.C. §§ 846, 841(a)(1). At sentencing, the district court

adopted the findings in the presentence investigation report

(“PSR”) and adjusted his base offense upward two levels for

the possession of a firearm during the course of his offense,

U.S.S.G. § 2D1.1(b)(1). The court sentenced Harris to 240
2 No. 02-3408

1 U.S.S.G. § 5C1.2 states, in relevant part:

[I]n the case of an offense under 21 U.S.C. § 841 . . .

§ 846 . . . , the court shall impose a sentence in accordance

with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant

meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth

verbatim below:

* * *

(2) the defendant did not use violence or credible threats of

violence or possess a firearm or other dangerous weapon (or

induce another participant to do so) in connection with the

offense . . . .

months imprisonment. Since Harris’s original counsel failed

to timely appeal, Harris sought relief under 28 U.S.C. §

2255 in order to obtain a fresh judgment and a renewed

opportunity to appeal. Such relief was granted by the

district court, and Harris was allowed to directly appeal his

sentence to this court. United States v. Harris, 230 F.3d

1054 (7th Cir. 2000), cert. denied, 532 U.S. 988 (2001)

(“Harris I”). 

In that direct appeal, we made three findings. First, the

district court did not clearly err when it concluded that

Harris possessed firearms during the offense under

U.S.S.G. § 2D1.1(b)(1). Id. at 1058. Second, Harris’s trial

counsel waived consideration of whether the “safety valve”

provision under U.S.S.G. § 5C1.2 applied because he affirmatively declined to object to the PSR, which did not

address this question, and otherwise failed to raise the issue at sentencing, despite having discussed it during plea

negotiations (when applicable, the safety valve allows a

sentencing judge to impose a sentence less than the statutory minimum).1 Id. at 1059. Third, Harris’s counsel was

not constitutionally ineffective for failing to argue for a

downward adjustment under the safety valve. Id. We then

affirmed his sentence. 
No. 02-3408 3

2 We direct the interested reader to Harris, 230 F.3d at 1056-57,

for the factual background regarding Harris’s arrest, indictment,

plea negotiations, and sentencing.

In his current petition for a writ of habeas corpus under

28 U.S.C. § 2255, Harris asserts for the second time that his

trial counsel was ineffective because counsel waived the

safety valve issue. The requested relief was denied by the

district court, and for the following reasons, we affirm that

denial.2

II. Analysis

In order for Harris to obtain relief under § 2255, he must

show that the district court sentenced him “in violation of

the Constitution or laws of the United States, or that the

court was without jurisdiction to impose such a sentence, or

that the sentence was in excess of the maximum authorized

by law, or is otherwise subject to collateral attack[.]” 28

U.S.C. § 2255. Hence, relief is appropriate only for “an error

of law that is jurisdictional, constitutional, or constitutes a

fundamental defect which inherently results in a complete

miscarriage of justice.” Borre v. United States, 940 F.2d 215,

217 (7th Cir. 1991) (internal quotation omitted). The

district court’s denial of § 2255 relief is reviewed for clear

error as to factual matters and de novo as to questions of

law. Tezak v. United States, 256 F.3d 702, 712 (7th Cir.

2001). 

Harris argues that he is entitled to relief under § 2255

because trial counsel was per se ineffective due to waiver of

the safety valve issue. To prevail on this ineffective assistance of counsel claim, Harris must demonstrate that (1)

counsel’s performance was deficient because he decided to

argue for the minimum sentence under the guidelines

instead of advocating for the application of the U.S.S.G.
4 No. 02-3408

§ 5C1.2 safety valve which, if applicable, would have allowed the judge to impose a sentence less than the statutory

minimum; and (2) this alleged error was prejudicial to

Harris. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Because we are bound by our prior holding regarding

ineffective assistance in Harris I, 230 F.3d at 1059, we

affirm the district court’s denial of habeas relief. Moreover,

we would still affirm even if our prior judgment was not

now binding, because Harris cannot demonstrate that his

trial counsel’s decision to abandon the safety valve argument was objectively unreasonable.

A. Previous Holding on Ineffective Assistance of

Counsel

Attempts to distinguish the ineffective assistance of

counsel claim forwarded in Harris I from the claim posited

in this 28 U.S.C. § 2255 habeas petition are unavailing. In

Harris I, the defendant anticipated that we would conclude

that the safety valve issue was waived and therefore

separately argued that trial counsel was ineffective based

upon that waiver. (R. 1 at 5.) In considering the argument,

we reiterated that such claims brought on direct appeal are

discouraged because the absence of pertinent factual

matters not typically found in a trial record make it incredibly difficult for a defendant to succeed in demonstrating that trial counsel’s performance was deficient. Harris I,

230 F.3d at 1059. We then expressly rejected Harris’s

ineffective assistance of counsel claim:

[O]n this record we cannot say that counsel’s failure to

request a downward adjustment under the safety valve

was not a strategic decision. Counsel argued for the

minimum sentence within the guideline range rather

than asserting that the district court should have applied the safety valve provision, which may or may not

have applied to Harris, and counsel was entitled to be
No. 02-3408 5

selective, especially where the pursuit of other avenues

may have risked opening the door to the inclusion of

unfavorable facts in the record.

Id. Although the district court in the instant petition did

not consider whether it was bound by our decision in Harris

I, holding instead that Harris was unable to demonstrate

that the allegedly defective performance of trial counsel

resulted in any prejudice to him, because we affirmatively

adjudicated Harris’s ineffective assistance of counsel claim

in Harris I, we are now bound by that decision.

We have repeatedly warned defendants against raising an

ineffective assistance of counsel claim on direct appeal. See,

e.g., United States v. Allender, 62 F.3d 909, 913 (7th Cir.

1995); United States v. South 28 F.3d 619, 629 (7th Cir.

1994). Such claims “likely ha[ve] no factual basis in the trial

record . . . [a]nd if undertaken [on direct appeal], our

conclusion will be binding on the district court should [a

defendant] later decide to bring this challenge again under

28 U.S.C. § 2255.” Allender, 62 F.3d at 913. Therefore, “a

defendant who presents an ineffective-assistance claim for

the first time on direct appeal has little to gain and everything to lose.” South, 28 F.3d at 629 (internal quotation

omitted). This case serves as yet another cautionary tale.

B. Counsel’s Performance

Even if we are not bound by our holding in Harris I, the

defendant’s current ineffective assistance of counsel argument still fails because he cannot meet the first prong of

the Strickland test, namely, that trial counsel’s waiver of

the safety valve issue was deficient. 466 U.S. at 687. Harris

cannot show that his trial counsel’s representation “fell

below an objective standard of reasonableness.” Id. at 688.

At Harris’s sentencing hearing, counsel argued for a

sentence at the low end of the sentencing range and did not

advocate for the application of the safety valve under
6 No. 02-3408

3 The affidavit states in relevant part:

4. I did not object to the District Court’s failure to find Mr.

Harris eligible for “safety valve” consideration under USSG

§ 5C1.2 for the reason that it was my professional opinion and

belief that the undisputed fact that several of Mr. Harris’ coconspirators possessed or used firearms during the course of

the charged conspiracy would preclude him from “safety

valve” consideration under § 5C1.2(2). My judgment in this

regard was further informed by the fact that since Mr. Harris

had “backed out” of the cooperation provisions of his Final

Plea Agreement, he was unlikely to receive any separate

advantageous sentencing findings from the sentencing judge

which were not specifically agreed to by the parties.

5. At the time of Mr. Harris’ guilty plea and sentencing,

it [was] my belief that the question of whether a finding that

possession of a firearm by a co-conspirator, when utilized by

the sentencing judge to impose a two (2) level enhancement

under USSG § 2D1.1(b)(1), would preclude “safety valve”

consideration had not been decided in the Seventh Circuit. It

was my opinion that the evidence, if presented, would clearly

show that it was “reasonably foreseeable” to Mr. Harris that

co-conspirators possessed firearms during the course of the

charged conspiracy, and I did not wish to risk expanding the

record to Mr. Harris’ detriment.

U.S.S.G. § 5C1.2. As evidenced by an affidavit sworn by

Harris’s attorney and attached to the government’s brief

below, this was a strategic decision based upon at least

three specific professional judgments made by trial counsel.3

 First, the sentencing judge was unlikely to make any

favorable sentencing findings unless expressly agreed to by

both parties in the plea agreement because Harris had

decided not to fully cooperate with the government. (R. 8,

Ex. A.) Second, arguing for application of the safety valve

might detrimentally expand the record. Id. And third, this

circuit had not determined whether the safety valve should

apply to a defendant who had the firearms used and carried
No. 02-3408 7

4 At the time of Harris’s sentencing, the Fourth, Fifth, and

District of Columbia Circuits had decided that co-conspirator

liability for possession of a firearm under U.S.S.G. § 2D1.1(b)(1)

was not a basis for determining possession of a firearm under

U.S.S.G. § 5C1.2. See United States v. F.M. Wilson, 114 F.3d 429,

432 (4th Cir. 1997); United States v. I.G. Wilson, 105 F.3d 219, 222

(5th Cir. 1997); In re Sealed Case, 105 F.3d 1460, 1462-63 (D.C.

Cir. 1997). The Eleventh Circuit, subsequent to Harris’s sentencing, followed suit. See United States v. Clavijo, 165 F.3d 1341,

1343 (11th Cir. 1999). But the Tenth Circuit had held the

opposite, finding that co-conspirator constructive possession of

firearms under § 2D1.1(b)(1) was a proper basis for denying the

safety valve. See United States v. Hallum, 103 F.3d 87, 89-90

(10th Cir. 1996). The issue was, and still is, an open question of

law in this circuit. See Harris I, 230 F.3d at 1059 (Ripple, J., dissenting). We need not decide this issue here and expressly decline

to.

by co-conspirators attributed to him under U.S.S.G.

§ 2D1.1(b)(1).4 Id. These were entirely reasonable strategic

considerations. Harris is consequently forced to posit,

without any supporting citations, that counsel’s waiver of

the safety valve issue per se constituted deficient performance. We decline to adopt such a novel proposition and

hold that Harris’s ineffective assistance of counsel claim

fails because the decision to forego the safety valve argument was a reasonable strategy—the very same rationale

we set forth in Harris I, 230 F.3d at 1059, a decision made

without the benefit of counsel’s affidavit now included in

the post-conviction record. Thus, we need not consider the

prejudice prong of Strickland.

III. Conclusion

For the foregoing reasons, the district court’s denial of

the petition for a writ of habeas corpus is AFFIRMED.
8 No. 02-3408

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-3-04