                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 02-3408
JEFFERY HARRIS,
                                             Petitioner-Appellant,
                                 v.


UNITED STATES OF AMERICA,
                                            Respondent-Appellee.

                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
          No. 01 C 1484—Larry J. McKinney, Chief Judge.
                          ____________
    ARGUED DECEMBER 12, 2003—DECIDED MAY 3, 2004
                   ____________


  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

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 af-
firmatively declined to object to the PSR, which did not
address this question, and otherwise failed to raise the is-
sue 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 stat-
utory 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.



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 statu-
      tory 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 . . . .
No. 02-3408                                                    3

  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 assis-
tance 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.



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.
4                                                No. 02-3408

§ 5C1.2 safety valve which, if applicable, would have al-
lowed 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 argu-
ment 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 in-
credibly difficult for a defendant to succeed in demonstrat-
ing 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 ap-
    plied 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 every-
thing 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 ar-
gument 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

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 coun-
sel.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



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’ co-
      conspirators 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.
No. 02-3408                                                        7

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 perfor-
mance. 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 argu-
ment 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.



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 sentenc-
ing, 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., dis-
senting). We need not decide this issue here and expressly decline
to.
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
