Braden v. USA
Filing
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MEMORANDUM OPINION - Signed by District Judge Thomas A Varlan on 6/04/2019. (KMK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
JEFFREY SCOTT BRADEN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No.:
3:16-CV-536-TAV
MEMORANDUM OPINION
Petitioner Jeffrey Scott Braden has filed a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 [Doc. 3]. At the Court’s direction, the government filed
a response [Doc. 8], and defendant replied [Doc. 10]. Having considered the pleadings and
the record, along with the relevant law, the Court finds that it is unnecessary to hold an
evidentiary hearing,1 and petitioner’s § 2255 motion will be denied.
I.
Background
A jury found petitioner guilty on September 5, 2013, of the three counts against him
in the superseding indictment: (1) conspiracy to manufacture fifty grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); (2)
possessing equipment, chemicals, products, and materials used to manufacture
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An evidentiary hearing is required on a § 2255 motion unless the motion, files, and record
conclusively show that the prisoner is not entitled to relief. See 28 U.S.C. § 2255(b). It is the
prisoner’s ultimate burden, however, to sustain his claims by a preponderance of the evidence. See
Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). Accordingly, where “the record
conclusively shows that the petitioner is entitled to no relief,” a hearing is not required. Arredondo
v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (citation omitted).
methamphetamine, knowing they would be used to manufacture methamphetamine, in
violation of 21 U.S.C. § 843(a)(6); and (3) possessing ammunition as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) [Docs. 589, 628, Case No. 3:13-CR-45-7]. Evidence at
trial included testimony by law enforcement officers and co-conspirators, as well as three
separate confessions by the petitioner, all of which established that petitioner was involved
in a long-term conspiracy to manufacture methamphetamine with several others in
Anderson County, Tennessee [see, e.g., Docs. 1276 pp. 94, 136; 1277 p. 11]. See United
States v. Braden, 612 F. App’x 336, 337–38 (6th Cir. 2015). Based on petitioner’s prior
felony drug convictions, this Court ultimately sentenced petitioner to the statutory
mandatory minimum of life imprisonment on count one, to be served concurrently with a
term of 240 months’ imprisonment on count two, and 120 months’ imprisonment on count
three [Doc. 1156, Case No. 3:13-CR-45-7]. The Sixth Circuit Court of Appeals affirmed
petitioner’s conviction and sentence, 612 F. App’x at 340, and petitioner timely filed his
§ 2255 motion on August 29, 2016 [Doc. 3 p. 10].
II.
Legal Standard
The Court must vacate, set aside, or correct petitioner’s sentence if it finds that “the
judgment was rendered without jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or that there has been such a denial
or infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack, . . . .” 28 U.S.C. § 2255. To obtain relief under § 2255
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because of constitutional error, the error must be one of “constitutional magnitude which
had a substantial and injurious effect or influence on the proceedings.” Watson v. United
States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)). Claims of ineffective assistance of counsel—which petitioner brings here—are
cognizable under § 2255. Massaro v. United States, 538 U.S. 500, 508–09 (2003).
III.
Analysis
Petitioner alleges that his trial counsel was ineffective for (1) failing to move for an
instruction that would have permitted the jury to find multiple conspiracies rather than one;
(2) failing to move for a bifurcated trial to sever the felon-in-possession charge from the
drug-related charges; and (3) failing to argue that the jury was required to make a specific
factual finding about the quantity of methamphetamine directly attributable to petitioner
[Doc. 3 pp. 13–24]. Petitioner also alleges that his appellate counsel was ineffective for
failing to raise the multiple conspiracy instruction or variance issue on direct appeal [Id. p.
20]. The Court will address each ground in turn.
The Sixth Amendment guarantees criminal defendants the right to “reasonably
effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). A
petitioner alleging ineffective assistance of counsel must first establish that his counsel’s
performance was deficient, that is, falling “below an objective standard of reasonableness
. . . under prevailing professional norms.” Id. at 688. Counsel is presumed to have provided
effective assistance, and petitioner bears the burden of showing otherwise. Mason v.
Mitchell, 320 F.3d 604, 616–17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a
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reviewing court “must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that . . . the challenged action might be considered sound trial strategy”)
(internal citation omitted). A petitioner must also show that his attorney’s deficient
performance prejudiced his defense, in the sense that “but for [counsel’s error,] the result
of the proceedings would have been different.” 466 U.S. at 694. “An error by counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.” Id. at 691. If petitioner
fails to establish both deficiency and prejudice, the claim must be rejected. Id. at 697.
A.
Trial Counsel’s Failure to Request an Instruction on Multiple
Conspiracies
“In order to prove a single conspiracy, the government must show that each alleged
member agreed to participate in what he knew to be a collective venture directed toward a
common goal.” United States v. Warner, 690 F.2d 545, 549 (6th Cir. 1982) (citations
omitted). Although “each member of the conspiracy must realize that he is participating
in a joint enterprise,” each member need not know the identities of all of the members, nor
need he be “involved in all of the activities in furtherance of the conspiracy.” Id. The
Sixth Circuit has stated that a variance between the indictment and the evidence at trial
only creates reversible error where “a defendant demonstrates that he was prejudiced by
the variance and that the indictment alleged one conspiracy, but the evidence can
reasonably be construed only as supporting a finding of multiple conspiracies.” United
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States v. Caver, 470 F.3d 220, 235–36 (6th Cir. 2006) (emphasis in original) (citing
Warner, 690 F.2d at 548).
In that vein, evidence at trial indicated that petitioner and a co-defendant, Lawrence
Scriver, were arrested together after a traffic stop while in possession of items that can be
used to make methamphetamine [see Doc. 1277 pp. 96–97, 99–100]. After his arrest,
petitioner admitted to cooking methamphetamine with Scriver, although he later stated
instead that he used to “deal” with Scriver, or knew that he dealt methamphetamine [Id.
pp. 11–12]. Several government witnesses also testified that they knew petitioner and
Scriver were methamphetamine cooks, assisted them in cooking methamphetamine, and,
often, that they knew other members of the conspiracy. For example, co-defendant
Kenneth Lamarr testified that he knew petitioner, Scriver, and an individual named Randy
Smith as fellow methamphetamine cooks, and exchanged pseudoephedrine with them for
the purpose of making methamphetamine [Doc. 1276 pp. 93–96]. Co-defendant Brandy
Braden testified that she knew Kenneth Lamarr, that she supplied petitioner with
pseudoephedrine, and that she knew that petitioner and Smith cooked methamphetamine
together over a period of time [Id. pp. 135–37]. Co-defendant Jessica Davis testified that
she used methamphetamine with petitioner at co-defendant Thomas Wright’s house, and
described Scriver and Wright as friends [Doc. 1277 pp. 36–40, 73].
Given this evidence, petitioner’s argument that “the trial record [was] entirely
devoid of any evidence pointing to a single, overarching conspiracy” is unavailing [see
Doc. 3 p. 17]. Here, where several members of the conspiracy did, in fact, know other
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individuals in the conspiracy—including petitioner—and knew that each was involved in
the common goal of cooking and distributing methamphetamine, “the evidence does not
exclude the possibility that [petitioner was] part of a single conspiracy.” See Caver, 470
F.3d at 236. See also United States v. Beals, 698 F.3d 248, 259 (6th Cir. 2012) (noting that
“the government successfully proved a common goal” in a single drug conspiracy where
co-conspirators taught each other how to make methamphetamine, helped procure
ingredients and supplies, and where each “was aware to some extent that the conspiracy
was larger than simply his or her individual interactions with others.”)
Therefore,
regardless of whether petitioner’s counsel was deficient in failing to request an instruction
on multiple conspiracies, petitioner cannot demonstrate that he was prejudiced by that
failure.
B.
Appellate Counsel’s Failure to Raise Variance Issue on Direct Appeal
“[I]t is difficult to demonstrate that an appellate attorney has violated [Strickland’s]
performance prong where the attorney presents one argument on appeal rather than
another.” Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (citing Smith v. Robbins, 528
U.S. 259, 289 (2000)). “In such cases, the petitioner must demonstrate that the issue not
presented ‘was clearly stronger than issues that counsel did present.’” Id. Petitioner here
did not outline which arguments his appellate counsel did raise on direct appeal, let alone
demonstrate that the variance issue was “clearly stronger” than those that were raised.
Therefore, petitioner has not met his burden of demonstrating that his appellate counsel’s
performance was deficient.
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C.
Trial Counsel’s Failure to Seek a “Bifurcated” Trial
Where a defendant proceeds to trial on multiple offenses in an indictment, courts
have discretion in deciding whether to order separate trials for one or more of those
offenses. Fed. R. Crim. P. 14(a). In order to succeed on a motion to sever counts, “a
defendant must show compelling, specific, and actual prejudice.” United States v. Saadey,
393 F.3d 669, 678 (6th Cir. 2005). Bald allegations that a jury may have convicted a
defendant of a crime “merely because of his criminal disposition” without providing
evidence in support does not suffice to prove prejudice. Id.
Petitioner insists, without support, that the fact of petitioner’s nine prior felony
convictions “was ingrained into the minds of the jurors . . . and heavily influenced the
jury’s verdict” as to the drug-related charges against him [Doc. 3 p. 22]. This, however, is
just the type of “unproven assertion” that fails to demonstrate prejudice. See Saadey, 393
F.3d at 679. At trial, after refusing to stipulate to the fact of his prior convictions for
purposes of the felon-in-possession count, petitioner’s counsel objected to the
government’s attempt to elicit testimony about his prior convictions [Doc. 1276 pp. 27–
29]. Although the government was required—due to the lack of stipulation—to prove that
petitioner was, in fact, a felon at the time he possessed ammunition, the Court limited the
prejudicial effect of the government’s proof by preventing the government from
introducing evidence about petitioner’s prior methamphetamine-related convictions [Id.
pp. 29–30]. The Court also gave the jury a limiting instruction, which said that it could
consider evidence of petitioner’s prior felony convictions only for purposes of the felon7
in-possession charge [Id. p. 128]. Juries are presumed to follow courts’ instructions, and
neither the record nor petitioner’s unsupported arguments provide a basis to believe the
jury in this case did otherwise. See United States v. Cunningham, 679 F.3d 355, 383 (6th
Cir. 2012). Petitioner, again, cannot establish prejudice.
D.
Trial Counsel’s Failure to Request Jury Find Quantity
Methamphetamine “Directly Attributable” to Petitioner
of
The Sixth Circuit has stated that, where a defendant is charged with conspiracy to
distribute a controlled substance under 21 U.S.C. §§ 846 and 841(b)(1)(A), “he is
responsible for the conspiracy in which he participated.” United States v. Robinson, 547
F.3d 632, 639 (6th Cir. 2008). Accordingly, the relevant drug quantity in such cases is that
involved in the conspiracy as a whole, not the quantity that, as petitioner argues, was
directly attributable to petitioner. Id. at 638–40. The Sixth Circuit has specifically held
that this concept does not violate the Supreme Court’s decision in Apprendi v. New Jersey,
530 U.S. 466 (2000)—upon which Alleyne v. United States, 570 U.S. 99 (2013) is based.
Robinson, 547 F.3d at 639. It follows, therefore, that petitioner’s argument that Alleyne
requires a jury to find a drug quantity attributable to each defendant specifically, is
unavailing. Because petitioner’s counsel was not required to make arguments that were
unlikely to be successful in light of controlling circuit precedent, petitioner cannot show
deficient performance or prejudice. See Downs v. United States, 879 F.3d 688, 691 (6th
Cir. 2018) (counsel’s decision not to file a “futile” motion did not constitute ineffective
assistance).
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IV.
Conclusion
Petitioner has failed to establish any basis upon which § 2255 relief could be
granted, and his motion to vacate, set aside, or correct sentence [Doc. 3] will be DENIED.
This action will be DISMISSED, and the Court will CERTIFY that any appeal from this
action would not be taken in faith and would be totally frivolous. Moreover, petitioner has
not made a substantial showing of the denial of a constitutional right because jurists of
reason would not dispute the above conclusions, Slack v. McDaniel, 529 U.S. 473, 484
(2000), so a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Fed. R.
App. P. 22(b). A judgment will enter DENYING the Motion [Doc. 3].
ORDER ACCORDINGLY:
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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