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.
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.
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
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.
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
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 ...