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
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.
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 ...