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June 16, 2005.

ADRAIN BRADD, Petitioner,

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


Petitioner Adrain Bradd (hereinafter, "Bradd") requests the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court denies Bradd's Habeas Corpus Petition.


  In May 1997, Bradd was convicted in a jury trial on one count of conspiracy to distribute narcotics in violation of 21 U.S.C. § 846. The Court sentenced him to 292 months in prison. The Seventh Circuit affirmed his conviction on direct appeal. United States v. Hoover 246 F.3d 1054 (7th Cir. 2001). The Supreme Court then denied Bradd's petition for Writ of Certiorari on November 13, 2001. Bradd v. United States, 534 U.S. 1033 (2001).

  On November 12, 2002, Bradd filed this Petition asserting seven claims: (1) at sentencing, the government misled the Court as to the scope of the conspiracy's operations during the period that Bradd was aware of the conspiracy and misled the Seventh Circuit as to the findings of the Court with respect to Bradd's actual participation in the conspiracy; (2) Bradd's sentence exceeded the maximum because he was not convicted by special verdict for each controlled substance at issue; (3) the Court erred by not providing an explicit jury instruction stating that Bradd was excluded from the Pinkerton instruction involving his co-defendants; (4) Bradd's sentence exceeded the maximum because the indictment and jury instruction did not specifically charge him with trafficking any certain quantity of narcotics; (5) Bradd's trial and appellate counsel were constitutionally ineffective for failure to sufficiently raise the issues addressed in Claims 1 through 4; (6) the government's practices (see Claim 1) deprived him of a fair sentencing hearing and oral argument on appeal violating his Fifth Amendment due process rights; and (7) the Court erred in allowing in evidence tape recordings that were not sealed immediately.

  On November 18, 2002, Bradd filed an amendment to add an eighth claim for appellate counsel's ineffectiveness for failure to argue Bradd's "minor role" in the conspiracy. On February 21, 2003, Bradd filed another amendment to add a ninth claim for appellate counsel's failure to argue sufficiently that the evidence only demonstrated a buyer-seller relationship and not a conspiracy between Bradd and his co-defendants. II. DISCUSSION

  A. Time-Barred Claims

  Section 2255 provides that claims must be brought within one year from the date on which the judgment of conviction becomes final. Here, the Supreme Court denied certiorari on November 13, 2001 and the year ran on November 13, 2002. Bradd's eighth and ninth claims are untimely and therefore denied.

  1. "Minor Role" in the Conspiracy

  Bradd argues that appellate counsel was ineffective in failing to argue that he played only a minor role in the conspiracy and therefore deserved a reduced sentence. The letter accompanying the eighth asserted claim is dated November 13, 2002. However, the filing date is November 18, 2002.

  The prisoner mailbox rule establishes that "certain notices or motions of pro se prisoners should be considered filed when these are given to prison authorities, rather than when received by the court." Rutledge v. United States, 230 F.3d 1041, 1051 (7th Cir. 2000). When the rule applies, courts permit motions to proceed where the petitioner certifies that he deposited the motion in the prison mailbox on or before the relevant deadline. See Edwards v. United States, 266 F.3d 756, 759 (7th Cir. 2001). The Seventh Circuit has not extended expressly the rule to motions to amend § 2255 petitions. See Rutledge, 230 F.3d at 1051. Bradd has consistently filed a Certificate of Service affirming the date of mailing for nearly every document submitted in conjunction with the Petition. No such certificate or affirmation exists to confirm the timeliness of this additional claim. Thus, the Court considers the relevant filing date of the eighth claim to be November 18, 2002 and denies the amendment.

  2. Buyer-Seller Defense

  Bradd argues that his appellate counsel failed to sufficiently argue a buyer-seller defense. He filed this claim on February 21, 2003. He argues that the amendment is not time-barred because it relates back to Claims 4 and 5.

  Where an amendment to a § 2255 claim relates back to the original claim, it may be considered even if filed after the statute of limitations expires. Rodriguez v. United States, 286 F.3d 972, 981 (7th Cir. 2002). However, amendments may not ...

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