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Bishop Carzell Graham v. United States of America

July 12, 2012


The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED Friday, 13 July, 2012 08:23:56 AM Clerk, U.S. District Court, ILCD


Following an August 2008 jury trial, a jury convicted Petitioner, Bishop Carzell Graham, of one count of Distribution of 50 Grams or More of Cocaine Base (Crack) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). In June 2009, U.S. District Judge Scott sentenced Petitioner to 292 months imprisonment. Petitioner filed a direct appeal, and the Seventh Circuit Court of Appeals affirmed his conviction. See United States v. Plato, 629 F.3d 646 (7th Cir. 2010). This matter is now before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Motion) (d/e 1). For the reasons that follow, the Motion is DENIED.


The following facts are taken from the Seventh Circuit Court of Appeals' decision on Petitioner's direct appeal.

In July 2007 law-enforcement officers in Springfield, Illinois, began investigating Plato for dealing crack cocaine. Under the direction of federal agents, a confidential informant contacted Plato to arrange a controlled drug buy. In a series of recorded phone calls, Plato agreed to meet the informant on July 13, 2007, at the Spaghetti Warehouse restaurant in Springfield. The informant met Plato in the restaurant's parking lot. The informant was carrying more than $1,700 in marked bills and wore an audio- and video-recording device. Plato and the informant got into a black Dodge Charger. Bishop Graham was seated in the driver's seat.

The parties disagree about what happened next. The trial testimony of the informant, which the jury evidently believed, was that Graham handed him the drugs and he gave Graham the cash in return. No one disputes, however, that the informant emerged from the car moments later with approximately 63 grams of crack cocaine. The entire exchange was captured on video surveillance. The police tailed Graham out of the parking lot and eventually pulled him over for making a left turn without signaling. Plato was no longer in the vehicle; the only other occupant was Graham's companion, a Ms. Chapman. Graham advised the police that his driver's license had been revoked, and he was taken into custody. The police found the $1,700 in marked buy money in Ms. Chapman's purse.

Plato and Graham were indicted jointly on one count of distributing 50 or more grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Plato agreed to cooperate with the police and participate in a controlled drug sale. The cooperation agreement eventually fell through, but not before Plato had made incriminating statements about the July 13 sale with Graham. Both defendants pleaded not guilty and were set to be tried together. Graham filed a motion for severance on the ground that the government would likely use Plato's statements to the police, and if Plato did not testify, this would violate Graham's Sixth Amendment right to confront the witnesses against him. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The government agreed not to use Plato's incriminating statements at trial but reserved the right to use them at sentencing. In light of the government's stipulation not to introduce Plato's statements at trial, the district court denied the severance motion. A three-day jury trial ensued.

The trial naturally focused on the exchange that took place in the Dodge Charger in the Spaghetti Warehouse parking lot. Both defendants stipulated that Graham was the person in the driver's seat and Plato was the person in the passenger's seat in the surveillance video of the transaction. Despite his presence in the car during the sale, Graham maintained that he was an innocent bystander. He testified that the informant placed the cash in the car's center console, and Plato motioned to him to take it, which he did. Graham said that he believed Plato was paying him for some tires and rims, and that he was unaware of any drug sale and had no idea why the informant was giving Plato such a large sum of money. Graham's attorney argued in closing that Plato arranged the drug sale and Graham had unwittingly provided transportation. Graham also attacked the credibility of the government's informant.

Plato did not testify at trial. His defense was simple and it took direct aim at Graham: Graham had arranged and executed the drug sale, and Plato had nothing to do with it. Plato's counsel argued in no uncertain terms that Graham was guilty.

Plato, 629 F.3d at 648-49. As stated, the jury convicted Petitioner and the Court later sentenced him to 292 months imprisonment.

On direct appeal, Petitioner argued that (1) he was deprived of his right to a fair trial because his trial was not severed from his co-defendant's trial, and (2) allowing the jurors to watch a surveillance video in slow motion violated the Sixth Amendment. See Plato, 629 F.3d at 650-52. The Seventh Circuit rejected these arguments and affirmed Petitioner's conviction. Id. at 653.

Petitioner filed his Petition in which he alleges he received ineffective assistance of counsel at trial. The ...

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