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BRANCH v. U.S.

DARRELL BRANCH, Petitioner,
v.
U.S., Respondent.



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

MEMORANDUM OPINION AND ORDER

In 1998, Petitioner Darrell Branch (hereinafter, "Branch") was convicted on one count of conspiracy to possess with intent to distribute narcotics pursuant to 21 U.S.C. § 846 (2000), and two counts of money laundering pursuant to 18 U.S.C. § 1956 (2000). The Court sentenced Branch to 324 months imprisonment on the conspiracy count and imposed a concurrent sentence of 20 years imprisonment on the money laundering counts.

In June 2003, Branch filed a petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (2000), asserting six discernable claims for relief: (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 Branch's guilt could be established beyond a reasonable doubt, and the appropriate maximum sentence that Branch could receive ascertained; (3) Branch's appellate counsel proved constitutionally inadequate for failing to argue adequately the absence of any jury finding as to type or quantity of drugs; (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. This Court denied Branch's petition on April 6, 2004. Branch v. United States, No. 03 C 4108, 2004 U.S. Dist. LEXIS 5836, at *13 (N.D. Ill. April 6, 2004).

  Presently before the Court are Branch's Motion for Issuance of a Certificate of Appealability (the "COA") pursuant to 28 U.S.C. § 2253 (2000) and his motion to proceed in forma pauperis. For the following reasons, Branch's motion for issuance of a COA is denied and his motion to proceed in forma pauperis is granted.

  I. DISCUSSION

  A. Motion for Issuance of a COA

  Branch appears to seek a COA for all of the claims presented in his § 2255 petition and rejected by the Court. The Court will consider each of them in turn. 1. Pinkerton Instruction

  Branch contends that his appellate counsel was ineffective because she failed to argue the absence of Branch's name from the Court's Pinkerton jury instruction. To show a violation of the Sixth Amendment right to counsel, a defendant must establish that his counsel's performance was deficient to the extent that it fell below an objective standard of reasonableness and that this deficient performance deprived him of a fair trial with a reliable result. See Strickland v. Washington, 466 U.S. 668, 688, 691 (1984).

  In Branch's case, the Court omitted Branch's name from the Pinkerton instruction in this case because, although Branch was charged in count one for participating in the conspiracy, he was not charged with any of the substantive counts to which the Pinkerton instruction applied. As Branch's conspiracy and money laundering convictions did not depend on a Pinkerton theory of liability, a Pinkerton instruction was not required for them. See United States v. Elizondo, 920 F.2d 1308, 1317 (7th Cir. 1990). Thus, no rational jurist would conclude that the inclusion of Branch's name in the Pinkerton instruction could have changed the result of either Branch's trial, or his § 2255 petition. Branch's claim would have been rejected on direct appeal just as it was in the disposition of his § 2255 petition. Accordingly, the Court denies Branch's request for a COA as to this claim. 2. Apprendi Claims

  Branch also alleges ineffective assistance of both trial and appellate counsel, and plain error by this Court, because he received a sentence greater than the five-year statutory maximum that applies to convictions for marijuana conspiracies without a specific jury finding as to the kind and quantity of drugs attributable to him. However, all six circuit courts considering the required content of a jury instruction in a multi-defendant drug conspiracy case under Apprendi, including the Seventh Circuit, have held that Apprendi does not require defendant-specific findings of drug type and quantity in a multi-defendant drug conspiracy case and only requires a finding beyond a reasonable doubt as to the amount and type of drugs attributable to the conspiracy as a whole to justify a sentence above the default statutory maximum. United States v. Knight, 323 F.3d 697, 710-12 (7th Cir. 2003); United States v. Stiger, 371 F.3d 732, 737-38 (10th Cir. 2004); United States v. Phillips, 349 F.3d 138, 143 (3d Cir. 2003); United States v. Allen, 65 Fed. Appx. 476, 480-81 (4th Cir.) (unpublished opinion); United States v. Turner, 319 F.3d 716, 722-23 (5th Cir. 2003); Derman v. United States, 298 F.3d 34, 42-43 (1st Cir. 2002). Given the consensus among circuit courts that Apprendi does not require defendant-specific findings of drug type and quantity in drug conspiracy cases and the Seventh Circuit's previous rejection of Apprendi arguments in this case, see Hoover, 246 F.3d at 1058, the Court concludes that a reasonable jurist would not consider its denial of Branch's Apprendi claims debatable or wrong. Accordingly, Branch's request for a COA for his Apprendi claims is denied.

  3. Placement of Listening Devices on Branch's Person

  In his motion for issuance of a COA, Branch briefly alludes to the claim he made in his § 2255 petition that his trial counsel was constitutionally ineffective because he failed to object to the placement of listening devices on Branch's person as outside of the scope of the warrant authorizing the surveillance, but makes no argument as to why this Court's opinion in his habeas petition was questionable or wrong. When a petitioner makes no argument why another court would reach a different conclusion than that reached in the disposition of the § 2255 petition, as is the case here, a court should not issue a COA. See United States v. Moore, No. 03 C 7303, 2004 U.S. Dist. LEXIS 4099, at *3-*4 (N.D. Ill. Mar. 15, 2004). Therefore, Branch's request for a COA as to this claim is denied.

  4. Sealing of Wiretap Tapes

  Branch alleges that his appellate counsel was constitutionally ineffective because he failed to argue a circuit split regarding the immediate sealing of surveillance tapes as required by 18 U.S.C. § 2518(8) (a)(2000) when seeking Supreme Court review. Although the government did not immediately seal the surveillance tapes at issue in this case, three separate panels of the Seventh Circuit have rejected § 2518(8)(a) challenges to this precise wiretap. Hoover, 246 F.3d at 1057; United States v. Wilson, 237 F.3d 827, 831 (7th Cir. 2001); United States v. Jackson, 207 F.3d 910, 918 (7th Cir.), vacated on other grounds and remanded by 531 U.S. 953 (2000), reinstated by 236 F.3d 886 (7th Cir. 2001). In its disposition of Branch's § 2255 petition, this Court concluded that there was not a circuit split affecting this issue, Branch, 2004 U.S. Dist. LEXIS 5836, at *12-*13, and no circuit split has developed since this Court's ruling in Branch. To support his position that reasonable jurists could disagree about whether the surveillance tapes in this case were admissible under § 2518 (8) (a), Branch erroneously relies on Judge Rovner's concurrence in Hoover that, while questioning the Seventh Circuit's reasoning in rejecting § 2518(8) (a) challenges to this wiretap, concludes that the ...


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