United States District Court, N.D. Illinois, Eastern Division
June 16, 2005.
ADRAIN BRADD, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
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 be
permitted when they "would add a new claim or theory of relief."
The ninth claim does not relate back to the original Petition.
The buyer-seller defense to which the claim alludes is mentioned
only twice in the text of the original petition. Further, the
defense does not form a substantive part of the alleged defects
in Claims 4 and 5. This argument constitute a new claim and is
therefore barred by the one-year statute of limitations. B. Issues Decided on Direct Appeal
On direct appeal, the Seventh Circuit addressed Claims 1, 2, 4,
and 7 of the Petition. "[I]n the absence of changed circumstances
of fact or law, we will not reconsider an issue which was already
decided on direct appeal." Olmstead v. United States,
55 F.3d 316, 319 (7th Cir. 1995). Bradd raised arguments relating to
Claims 1, 2, and 4 in his appellate brief, where he stated that
these issues demanded resentencing. The Seventh Circuit, however,
asserted that "[n]one of the other arguments concerning
sentencing calls for a reduction." Hoover, 246 F.3d at 1062.
The Seventh Circuit also explicitly addressed Claim 7 concerning
the evidentiary use of the government's tape recordings. Id. at
1057. Bradd does not argue that there is any change in law or
fact. Therefore, Claims 1 (on sentencing grounds), 2, 4, and 7
C. Prosecutorial Misconduct
Bradd argues that the government attorney lied to the Seventh
Circuit at oral argument regarding the Court's finding at
sentencing. Specifically, Bradd asserts that: (1) the District
Court found that Bradd was "aware" of the conspiracy, but the
government attorney stated that the Court found him to have
"agreed and embraced" it; and (2) the District Court found that
Bradd's awareness lasted for only ten days or two weeks, but the
government stated that the Court found him to be aware of the
conspiracy "from November 1993 until its end." Bradd claims that this alleged
misconduct prejudiced him on appeal in violation of his Fifth and
Sixth Amendment rights.
Allegations of prosecutorial misconduct more commonly are
couched in terms of misbehavior at trial. In such cases, a court
must inquire "whether the misconduct `so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.'" Stewart v. Duckworth, 93 F.3d 262, 267 (7th Cir.
1996) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
Darden provides a useful framework for analysis of Bradd's
Bradd's first awareness argument fails to meet this standard.
Federal Sentencing Guideline Section 1B1.3 makes no distinction
between these two phrases the guideline does not depend
substantively on either phrase. Thus, Bradd's suggestion that
these terms are legally distinct is meritless and the
government's use of either phrase did not taint the appellate
proceeding or deny him due process.
Bradd's second awareness argument also fails. The Seventh
Circuit possessed transcripts and the rest of the trial and
sentencing record when considering Bradd's appeal. It was able to
compare any of the government's statements in oral arguments to
the record and therefore was not "duped" by the government. As
such, the alleged misstatement did not taint the proceeding so as
to deny Bradd due process. This portion of Claim 1 is denied.
Claim 6 is substantively the same as Claim 1 (differing only in the alleged
Constitutional rights violation) and is similarly denied.
D. The Pinkerton Jury Instruction
Bradd argues that the Court erred by not providing an explicit
jury instruction stating that Bradd was excluded from the
Pinkerton instruction that included his co-defendants. Put
another way, Bradd contends that because the jury was not told
directly that he could not be found guilty for anything but his
conspiracy charge, the likelihood of juror confusion was so great
that he was impermissibly convicted on a charge for which the
jury received no instruction.
Bradd challenges "the sufficiency of the evidence supporting
the jury's finding that each defendant was a member of the same
conspiracy," known as a "conspiracy variance claim." United
States v. Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991), cert.
denied, 112 S.Ct. 596 (1991). However, if the same verdict would
have been reached absent the erroneous instruction, then any
error resulting from that variance is considered harmless. Id.
(holding that the variance is immaterial "if a reasonable trier
of fact could have found beyond a reasonable doubt the existence
of the single conspiracy charged in the indictment"); United
Stated v. Goines, 988 F.2d 750, 773 (7th Cir. 1994). Thus,
Bradd's conviction stands because there was enough evidence to
convict him on the conspiracy charge, even with the alleged error
in instructions. "Not every coconspirator must participate in, or even know the
details of, every aspect of the conspiracy. It is enough for the
government to prove that each knew of the agreement to distribute
[narcotics] and joined that agreement." Goines,
988 F.2d at 772. Here, the Seventh Circuit found that "[e]vidence in the
record establishes beyond any doubt that the Gangster Disciples
distributed (much) more" than the requisite amount or narcotics
needed to sustain the conviction, and thus "there is no
likelihood that any reasonable jury would have failed to find
that each [defendant] is culpable. . . ." Hoover,
246 F.3d at 1058. Accordingly, the government met its burden of proof on the
conspiracy charge with respect to Bradd and the alleged variance
was indeed harmless. The Court denies Claim 3.
E. Ineffective Assistance of Counsel
In Claim 5, Bradd argues that his trial and appellate counsel
were ineffective for failing to argue the issues presented in
Claims 1 through 4. A party claiming ineffective assistance must
first demonstrate "that counsel's performance was so deficient
that it can be said that counsel was not functioning as the
counsel guaranteed to the criminal defendant by the Sixth
Amendment." Schaff v. Snyder, 190 F.3d 513, 526 (7th Cir.
1999). Second, the party must show that but for this deficient
performance, "the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 694 (1984). Bradd's misconduct arguments with respect to the sentencing
aspect of Claims 1, 2, and 4 are meritless because those issues
were raised and addressed on direct appeal. With respect to the
prosecutorial misconduct aspect of Claim 1 and the jury
instruction issue in Claim 3, the law does not support Bradd's
position on those claims. See Discussion, supra. Therefore,
Bradd cannot prove ineffective assistance of counsel under the
Strickland standard and Claim 5 is denied.
For the reasons stated herein, Petitioner Bradd's § 2255
Petition is DENIED.
IT IS SO ORDERED.
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