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BRANCH v. U.S.

April 6, 2004.

BRANCH
v.
U.S.



The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Darrel Branch ("Branch"), pro se, petitions the Court under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct his sentence. For the following reasons, his petition is denied.

I. CASE HISTORY

  A jury convicted Branch on one count of conspiracy to possess with intent to distribute narcotics pursuant to 21 U.S.C. § 846 and on two counts of money laundering pursuant to 18 U.S.C. § 1956. The Court sentenced Branch to 324 months on the conspiracy count and a concurrent sentence of 20 years for money laundering.

  On May 14, 2001, the Seventh Circuit remanded the case for re-sentencing to correct an error in the calculation of Branch's criminal history. On February 11, 2002, the Court re-sentenced Branch to 292 months. Subsequently Branch filed a petition for certiorari with the United States Supreme Court, which the Supreme Court denied.

  On June 16, 2003, Branch filed his § 2255 petition. Branch's petition asserts six discernable claims which Branch believes entitle him to relief under § 2255:(1) Branch's appellate counsel proved constitutionally ineffective in failing to argue the absence of Branch's name from the trial court's Pinkerton jury instruction; (2) Branch's trial counsel proved constitutionally ineffective in failing to request an instruction as to a finding of quantity and type of drug so that it could be established beyond reasonable doubt the degree or actuality of guilt and the appropriate maximum sentence to which Branch could be subjected; (3) Branch's appellate counsel proved constitutionally inadequate for failing to argue adequately the absence of any jury finding as to type or guantity of drug; (4) the Court committed plain error in sentencing Branch for quantities that were not found by the jury and which elevated the maximum penalties beyond the finding set forth by the jury; (5) Branch's trial counsel proved constitutionally ineffective in failing to object to the placement of listening devices on Branch's person when the Court's order only authorized the government to "install, remove and maintain listening devices in the visiting area"; and (6) appellate counsel failed to argue sufficiently a conflict between circuit courts, regarding the immediate sealing of surveillance tapes, on a writ of certiorari to the United State Supreme Court.

  II. STATEMENT OF FACTS

  Larry Hoover, Tirenzy Wilson, Gregory Shell, Jerry Strawhorn, Adrian Bradd, Darrell Branch, Andrew Howard, and William Edwards, were charged and convicted in 1998 of numerous offenses relating to their participation in activities of the Gangster Disciples, a large and vicious street gang that sells large quantities of cocaine, heroin, and other drugs in Chicago. Petitioner Branch, although not a high-ranking member in the gang hierarchy, was nonetheless convicted by a jury of conspiracy, as charged in count one of the indictment, and money laundering, as charged in counts forty-one and forty-two of the indictment.

  III. DISCUSSION

  A. Timeliness of Petition

  The government alleges that Branch is procedurally barred by the one-year period of limitation governing motions for collateral relief under 28 U.S.C. § 2255. Branch has, however, timely filed his claim for relief under § 2255. For purposes of the one-year period of limitation governing motions for collateral relief under 28 U.S.C. § 2255, "a defendant's conviction becomes `final' when his petition for certiorari is denied." Horton v. United States, 244 F.3d 546, 550 (7th Cir. 2001). Here, the Supreme Court denied Branch's petition for certiorari on June 28, 2003. Since Branch filed his § 2255 motion June 12, 2003, he falls within the allotted time.

  B. Pinkerton

  Branch contends that appellate counsel proved constitutionally ineffective because she failed on appeal to argue the absence of Branch's name from the trial court's Pinkerton jury instruction. Under Pinkerton v. United States, "every member of a conspiracy is substantively culpable for other conspirators' acts within the scope of the conspiracy." United States v. Hoover, 246 F.3d 1054, 1057-58 (2001) (citing Pinkerton v. United States, 328 U.S. 650 (1946)). The trial court instructed the jury as follows:

  A conspirator is responsible for the acts of any other member of the conspiracy if he was a member of the conspiracy when the act was committed and if the act was committed in furtherance ...


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