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 “{nJone 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 are
denied.

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


“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 “f[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 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.”
Id.

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.


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 claims.

Bradd’s first awareness argument fails to meet this standard.
Federal Sentencing Guideline Section 1B1l.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


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.

III. CONCLUSION

For the reasons stated herein, Petitioner Bradd’s § 2255

Petition is DENIED.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Dated: Das


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS JUN 16
EASTERN DIVISION 2005

ADRAIN BRADD,
Petitioner, Case No. 02 C 8199

v.

Hon. Harry D. Leinenweber

UNITED STATES OF AMERICA,

Respondent.

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.

I. INTRODUCTION

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


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.


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.