Bradford v. United States of America
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 2/16/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(vh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA
(Crim. Nos. 3:15-cr-00088-6 &
Santez Bradford has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 (Doc. No. 1), in which he claims his conviction for being a felon in possession of a
firearm must be set aside based on Rehaif v. United States, 139 S. Ct. 2191 (2019). Thereafter,
appointed counsel filed an Amended Motion, alleging the ineffective assistance of counsel during
the plea negotiation process and at sentencing. (Doc. No. 7). The Government has filed a response
in opposition to both Motions (Doc. No. 11), and Bradford has replied (Doc. No. 12). For the
reasons that follow, Bradford’s Motions will be denied.
I. Factual Background
During Bradford’s sentencing hearing on December 13, 2019, the Court observed that, “[i]n
a ten-week period of criminal activity, from December of 2014 to February of 2015,” Bradford was
“on a rampage,” which involved the possession of stolen firearms, and “shooting multiple persons.
Thank goodness, nobody was killed.” (Case No. 3:16-cr-00143, Doc. No. 156 at 264). The rampage
led to two criminal cases (Case Nos. 3:15-00088-6 & 3:16-cr-0043-2) and the return of indictments
against Bradford and many others. Bradford was charged in nine counts with crimes ranging from
being a felon in possession of a firearm to possessing firearms during the furtherance of a drug
trafficking crime. On December 20, 2019, Bradford received an effective sentence of 264 months
for both cases.
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For purposes of his present Motions to Vacate, it is unnecessary for the Court to detail the
facts underlying the litany of crimes Bradford pled guilty to on July 5, 2017. Rather, the following
summary of facts from the Sixth Circuit on Bradford’s direct appeal aptly places his present
arguments into context:
Bradford pled guilty to four counts of possessing a firearm as a felon, two counts of
possessing a stolen firearm, one count of stealing a firearm, and one count of
possessing with intent to distribute cocaine. Included in the plea agreement was
Bradford’s admission to shooting at a group of people on Claiborne Street in
Nashville. That shooting arose from an argument Bradford had with Kenneth
Underwood, with whom Bradford’s sister had a child. After the argument, Bradford
acquired a pistol and, with two friends, sought out Kenneth. Instead, he found
Kenneth’s sister, Quineshia Underwood, and a group of others on Claiborne Street.
Bradford and one of his friends shot at the group repeatedly, fortunately hitting no
one. Police found eight bullet casings at the scene.
In December 2017, Bradford, acting pro se, sought to withdraw his guilty plea.
Bradford explained that he now believed the lawyer who advised him to plead guilty
failed to explore the possibility of suppressing some of the evidence against him.
Bradford also wrote that he was “really pleading to stuff [he] didn’t do.” Bradford
later clarified that, when he said “stuff [he] didn’t do,” he was referring to some of
the relevant conduct he admitted to in his plea agreement, not any of the charges.
The district court construed Bradford’s letter as a motion to withdraw his plea,
appointed Bradford new counsel, and scheduled a hearing on the motion.
Applying Sixth Circuit precedent, the district court found that Bradford did not have
a fair and just reason for withdrawing his plea. Fed. R. Crim. P. 11(d)(2)(B). In
denying the motion, the district court emphasized that Bradford was aware of the
possibility of filing a motion to suppress when he entered the guilty plea; delayed
seeking to withdraw the plea; was not claiming innocence; had an adequate plea
colloquy; and had prior experience in the criminal justice system which should have
informed his decision to plead guilty instead of seeking to suppress the evidence
United States v. Bradford, 822 F. App’x 335, 336-337 (6th Cir. 2020).
The “some of the evidence” that Bradford wanted suppressed, and the “stuff he didn’t do”
serve as the basis for his ineffective assistance of counsel claims. These claims are brought against
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two different lawyers: David Buckholts, a well-qualified CJA panel attorney who represented
Bradford through his change-of-plea hearing; and Gary C. Tamkin, an Assistant Federal Defender,
who was appointed after Bradford moved to withdraw his plea and represented him through
The evidence Bradford wanted suppressed were incriminating photographs that contained
pictures of firearms and some other potential evidence that were taken from a cellphone owned by
Heather Coleman, who was Bradford’s girlfriend. At the evidentiary hearing regarding Bradford’s
request to withdraw his plea, Buckholts testified that he spoke with Bradford “multiple times” about
filing a motion to suppress, talked with him about the merits of such a motion, and told him “he
[Bradford] wouldn’t have standing to suppress the photographs off of her [Coleman’s] phone.”
(Case No. 3:15-cr-00088, Doc. No. 732 at 6).1 Buckholts also conceded that whether to file a motion
to suppress was an “important decision.” (Id. at 8).
The “stuff he didn’t do” relates to his agreeing to admit he shot at Underwood, rather than,
as he now claims, shooting into the air just to scare Underwood. This serves as an ineffective
assistance of counsel claim against Buckholts who allegedly should not have let him agree to the “at”
language in the statement of facts used to support his plea. It also serves as the basis for his
ineffective assistance claim against Tamkin because, in Bradford’s view, he should have been called
to rebut the testimony proffered at the sentencing hearing that, in turn, led to a 4-point increase for
attempted murder under the advisory Guidelines pursuant to § 2K2.1(b)(2)(6)(B).
Again, the Sixth Circuit’s decision on direct appeal adds context and meat to the bones of
Bradford testified at the hearing on the motion to withdraw plea that the phone “was more like [his]
phone than it was hers,” but conceded Coleman “paid the bills and stuff.” (Id. at 59)
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At the sentencing hearing, the government presented evidence supporting the
attempted murder cross-reference, including testimony from witnesses to the
shooting on Claiborne Street, testimony from another person who Bradford told
about the shooting, and photographs from Claiborne Street after the shooting.
Quineshia testified that on the evening of December 22, 2014, she saw Bradford, who
she recognized, and heard him identify her as Kenneth’s sister to his friend before
firing thirteen to fifteen shots at her from fifty feet away. Underwood further testified
that, while neither she nor others were hit by the bullets, she “could feel them coming
past” and that she “felt like if [she] would have moved, [she] probably would have
got hit.” Jeremiah Haynes testified that on December 22, 2014, Bradford asked him
for a gun and told him that Kenneth “got to shooting at him.”
Bradford argued that the attempted murder cross-reference should not apply because
he lacked the intent to kill anyone but had instead just fired in the air to scare
Underwood. The district court disagreed and found that, after crediting Quineshia’s
and Haynes’s testimony, the preponderance of the evidence supported the
Bradford, 822 F. App’x at 337.
II. Legal Discussion
“The law generally gives federal prisoners just one chance to overturn a final criminal
judgment – by alleging any and all errors in a single motion to vacate under 28 U.S.C. § 2255.”
Hueso v. Barnhart, 948 F.3d 324, 326 (6th Cir. 2020). Nevertheless, “Section 2255 is not a
substitute for a direct appeal, and thus a defendant cannot use it to circumvent the direct appeal
process.” Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003). Consequently, “to obtain
collateral review relief a prisoner must clear a significantly higher hurdle than would exist on direct
appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). One who has failed to appeal a claim
and therefore procedurally defaulted on that claim “must show either that (1) he had good cause for
his failure to raise such arguments and he would suffer prejudice if unable to proceed, or (2) he is
actually innocent.” Id. citing Bousley v. United States, 523 U.S. 614, 622 (1998).
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Even though Bradford took a direct appeal, he did not raise any of his present claims in that
proceeding, nor does he claim that he is actually innocent of the charges against him. Thus, to be
successful on collateral review, he must show both cause and prejudice for his procedural default.
With this standard in mind, the Court turns to Bradford’s claims.2
A. Rehaif Claim
In Rehaif, the Supreme Court examined the interplay between § 922(g)’s prohibition against
carrying a firearm by individuals who fall within certain categories from possessing firearms, and
§ 924(a)(2)’s provision that a person who knowingly violates the statute is subject to up to ten-years
imprisonment. The Supreme Court held that the Government was required to prove both that the
defendant knew he possessed a firearm, and that defendant knew that he was in a prohibited class
(such as being a convicted felon) at the time he possessed the firearm. 139 S. Ct. at 2194. In other
words, knowledge of both of these things is an essential element. See United States v. Hobbs, 953
F.3d 853, 857 (6th Cir. 2020) (stating that Rehaif adds a “‘knowledge-of-status’ element”).
Bradford cannot show cause for failing to raise a Rehaif claim on direct appeal. Rehaif was
decided on June 21, 2019, and Bradford did not file his notice of appeal until December 23, 2019.
(See Case No. 3:15-cr-00088, Doc. No. 361). Even well before then, the issue of whether knowledge
of prohibited status was an element of being a felon in possession of a firearm charge “was at the
The Government argues that Bradford’s Rehaif claim is barred by the “Waiver of Appellate
Rights” provision in his plea agreement. The Court disagrees. As recently explained in detail by this Court
in Starks v. United States, No. 3:15-CR-00147-5, 2021 WL 351995, at ** 3-5 (M.D. Tenn. Feb. 2, 2021) that
waiver provision (and the one typically used in this district) does not bar collateral review of convictions as
opposed to sentences. See also In re Brooks, No. 19-6189, 2020 U.S. App. LEXIS 6371 (6th Cir. Feb. 28,
2020); Hall v. United States, Case No. 3:20-cr-00646, Doc. No. 9 at 6-9 (M.D. Tenn, Jan. 21, 2021); Lee
v. United States, No. 3:19-cv-00850, 2020 WL 7425862, at *6 (M.D. Tenn. Dec. 18, 2020); United States
v. Serrano, No. 3:19-CV-00719, 2020 WL 5653478, at *12 (M.D. Tenn. Sept. 23, 2020).
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forefront of the relevant legal landscape.” United States v. Wooden, 945 F.3d 498, 506 (6th Cir.
2019). In fact, this issue had been “percolating in the courts for years,” United States v. Bryant, No.
11-CR-765, 2020 WL 353424, at *3 (E.D.N.Y. Jan. 21, 2020), including within the Sixth Circuit,
see, United States v. Wilson, No. 1:17-CR-60, 2019 WL 6606340, at *5 (W.D. Mich. Dec. 5, 2019)
(collecting cases dating back to 2010).
Nor has Bradford established prejudice because he has not shown “there is a reasonable
probability that, but for [the] errors, he would not have pleaded guilty and would have instead
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). This is because the
government’s obligation to prove knowledge is not “burdensome,” and it may be inferred from
circumstantial evidence. Rehaif, 139 S. Ct. at 2198.
Here, the record contains more than sufficient evidence to establish knowledge. At the plea
colloquy, Bradford was told that, with respect to Count Two in case No. 3:16-cr-0043, the
Government would have to prove that “ at the time you possessed the firearms and ammunition you
had been convicted of a felony punishable by imprisonment for more than one year,” and similarly,
with respect to Counts Sixteen, Eighteen, and Twenty in case No. 3:15-cr-00088, the Government
“would have to prove that at the time you possessed the firearms you had been convicted previously
of a felony . . . punishable by imprisonment of up to one year.” Bradford testified under oath that
he understood those requirements. (Case No. 3:16-cr-00143, Doc. No. 155 at 11, 14). Further in
the statement of facts supporting his change of plea, Bradford admitted the following was “true and
Santez Bradford became a convicted felon on October 3rd, 2013, when he was
convicted in the Criminal Court of Davidson County, Tennessee in Case
2012-D-3028, of possession with intent to sell or deliver over half a gram of cocaine,
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a crime punishable by a term of imprisonment exceeding one year.
(Id. at 27, 38).
Finally, the Presentence Report lists the above felony (PSR ¶ 6). Not only did Bradford not
object to this paragraph in his Sentencing Memorandum, he “agreed his adult convictions total 9
points,” including “a non-school zone felony drug charge.” (Case No. 3:15-cr-00088, Doc. No. 762
at 2, 9). See Clay v. United States, No. 20-1232, 2021 WL 192778, at *1 (8th Cir. Jan. 20, 2021)
(Defendant “also cannot show prejudice since he admitted in his plea agreement and again at the
change of plea hearing that he had been previously convicted of a crime punishable by more than a
year’s imprisonment.”); Carlyle v. United States, No. 20-11399, 2020 WL 6844052, at *2 (11th Cir.
Nov. 23, 2020) (defendant could not show prejudice where he admitted to having three felonies at
change of plea hearing and did not object to PSR’s statement that he served two years for those
crimes). Bradford is entitled to no relief under Rehaif.
B. Ineffective Assistance Claims
Because “the Sixth Circuit ‘generally do[es] not review ineffective assistance of counsel
claims on direct appeal’” United States v. Franco, 484 F.3d 347, 355 (6th Cir. 2007) (citation
omitted), and because counsel is unlikely to argue on appeal that he or she was ineffective below,
“[i]neffective assistance of counsel can constitute cause for a procedural default,” Hodges v. Colson,
727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986). Put
differently, “an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding
under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro
v. United States, 538 U.S. 500, 504 (2003). Accordingly, the only remaining issues are whether
Buckholts and/or Tamkin were ineffective and/or whether that ineffectiveness prejudiced Bradford.
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“Defendants claiming ineffective assistance must establish two things. First, that the
attorney’s performance fell below “prevailing professional norms. And second, that the attorney’s
poor performance prejudiced the defendant’s case.” Monea v. United States, 914 F.3d 414, 419 (6th
Cir. 2019) (citing Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)). “Proving prejudice is not
easy” because the petitioner is confronted with the “high burden” of demonstrating “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. (citing Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011)).
1. Ineffective Assistance Claim Against Buckholts Regarding Advice on Motion to Suppress
Bradford claims that Buckholts was ineffective when Buckholts told him that he lacked
standing to file a motion to suppress the contents of Heather Coleman’s cellphone. As a preliminary
matter on this claim, the Court notes a dispute between the parties as to the harm that must be shown
in regard to failing to file a motion to suppress. Bradford argues the Government “mistakenly frames
the harm as ‘but for Buckholts’ advice, Bradford would have filed a suppression motion’; whereas
Mr. Bradford has actually claimed (essentially) that ‘but for Buckholts’ advice, Bradford would not
have pleaded guilty.’” (Doc. No. 12 at 1). In reality the pertinent inquiry encompasses a bit of both:
“petitioner must show that a suppression motion had merit, and that if the motion had been granted,
he would not have pled guilty and would have insisted on his right to stand trial.” Brooks v.
Edwards, 96 F.3d 1448 (6th Cir. 1996) (citing Hill, 474 U.S. at 60); see also Ray v. United States,
721 F.3d 758, 762 (6th Cir. 2013) (stating in case where claims was that counsel did not file a
motion to suppress, defendant must “prove that his Fourth Amendment claim is meritorious and that
there is a reasonable probability that the verdict would have been different absent the excludable
evidence in order to demonstrate actual prejudice”). Bradford has not made the requisite showing.
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Recently, the Sixth Circuit made several observations that are particularly pertinent to
Bradford’s ineffective assistance claims against Buckholts:
The Sixth Amendment “does not guarantee perfect representation” but only
“reasonably competent” representation. Harrington v. Richter, 562 U.S. 86, 110, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011) (cleaned up). Thus, defense lawyers need not
(and in fact should not) raise every colorable argument they can find. See Davila v.
Davis, ___ U.S. ____, 137 S. Ct. 2058, 2067, 198 L.Ed.2d 603 (2017) (“Effective
appellate counsel should not raise every nonfrivolous argument[.]”); Wilson v.
McMacken, 786 F.2d 216, 219 n.3 (6th Cir. 1986) (trial counsel need not make
“every colorable objection”). Tough judgment calls about what to challenge and
what to let slide are part of lawyering. Such decisions only become deficient – that
is, incompetent – when no reasonable counsel would have made the same choice at
the time. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Here, even if [defendant’s]
claims could be called colorable, there’s simply no argument that they were so strong
that every reasonable defense attorney would have run with them.
Moody v. United States, 958 F.3d 485, 492 (6th Cir. 2020).
For a number of reasons, Bradford cannot show prejudice regarding Buckholts’ advice. For
one, it is hardly clear that Buckholts’ statement that Bradford lacked standing was even incorrect.
“It has long been a rule that a defendant can urge the suppression of evidence obtained in violation
of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights
were violated by the challenged search or seizure.” United States v. Padilla, 508 U.S. 77, 81 (1993)
(per curiam). On this point, recall that Bradford testified the cellphone phone was more his than
hers, but also conceded that the phone was in Coleman’s name and she paid the bills on it.
For another, the likelihood that the contents of Coleman’s phone would be suppressed is
remote because the cellphone was seized pursuant to a state search warrant that authorized the
examination of its contents. This occurred after police came to suspect Aweis Haji-Mohamed of
first-degree murder and learned from Coleman that Haji-Mohamed (1) came to her house
immediately after the murder; (2) was “good friends with her boyfriend Santez Bradford and
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Jarcarlvis Marable”; (3) “call[ed] her phone on a daily basis to make contact with Bradford and
Marable”; and (4) had been in “sustained and regular contact” with her. (Case No. 3:16-cr-00143,
Doc. No. 107-1 at 1). Thus, to successfully establish standing, Bradford would have to show he had
a reasonable expectation of privacy in the phone, United States v. Noble, 762 F.3d 509, 526 (6th Cir.
2014), notwithstanding that Coleman told detectives the phone was hers and she used it to keep in
contact with Haji-Mohammed. And, of course, he would have to get around the reality that a search
warrant had been issued by a state judge for the content of Heather Coleman’s phone in order to
prevail on a motion to suppress.
Assuming Bradford had standing to suppress evidence from Coleman’s phone and assuming
that he was somehow able to prevail on a motion to suppress, the Court has nothing before it to
establish that Bradford would not have pled guilty had he been given different advice by Buckholts
regarding standing. However, in his Amended Motion, Bradford – in bold font – “requests an
evidentiary hearing in which to testify that . . . but for the wrong advice, he would not have entered
a guilty plea[.]” (Doc. No. 7 at 5). That request will be denied.
“An evidentiary hearing ‘is required unless the record conclusively shows that the petitioner
is entitled to no relief.’” Martin v. United States, 889 F.3d 827, 832 (6th Cir. 2018) (quoting
Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012)). “Most assuredly, the words ‘grant
a prompt hearing’ [in Section 2255] are not magic words requiring a district judge, who is fully
familiar with the circumstances under which a guilty plea was made, to duplicate procedures and
conduct a hearing to resolve alleged fact issues which can and should be decided on the record that
already exists.” United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir.1993).
An evidentiary hearing is not necessary because the same argument was raised by Bradford
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and rejected by the Court in the context of Bradford’s motion to withdraw his plea. With regard to
the issue surrounding the filing of a motion to suppress and standing, the Court ruled:
Bradford was fully aware of the possibility of filing a motion to suppress. This is not
a case where Mr. Bradford ordered his counsel or instructed his counsel to file such
a motion and when the counsel failed to do so he proceeded to plead. Instead, this
is a case where he knew that there was a possible suppression motion. He talked to
his counsel, Mr.Buckholts, about that. He accepted Mr. Buckholts’ advice about –
and his opinion on that motion to suppress. And that one factor was one of several
factors he considered in making his decision to plead guilty.
(Case No. 3:15-cr-00088, Doc. No. 732 at 112). Simply put, the Court “d[id] not find credible,” or
“logical or believable,” id. at 106, that Bradford would not have pled guilty but-for Buckholts’
allegedly incorrect advice. There is no reason to think that the Court would find any differently
2. Ineffective Assistance Claims Against Buckholts and Tamkin Regarding Shooting At
Bradford next claims Buckholts was ineffective because he did not explain to him the
implications of the “shot at” language, and claims “he would not have entered the guilty plea if he
had known the language could or would have been used to prove” he shot at Underwood. (Doc. No.
8 at 2). Rather, he understood the statement of facts “to mean he shot in the air and not at persons
directly with intent to hit a person[.]” (Id.). Again, in bold-faced font, Bradford “requests an
evidentiary hearing in which to testify that he did not shoot in the direction of persons but rather in
the air; and . . . he would not have entered a guilty plea nor agreed to the statement of facts[.]” And,
again, the Court finds an evidentiary hearing unnecessary.
Bradford pled guilty pursuant to a written plea agreement containing a statement of
underlying facts. Among other things, the statement indicated that Bradford had a simmering dispute
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with Kenneth Underwood regarding how Bradford’s sister (“SE”) was caring for her and
Underwood’s child. Upon hearing that Bradford intended to rob him, Underwood went to the J.C.
Napier housing development, argued with Bradford, and left. Bradford then armed himself with a
Hi-Point 9mm pistol and, together with another armed cohort, went looking for Underwood. During
the search, Bradford “saw a group of several people, including Underwood’s sister [Quineshia], on
Claiborne Street in the J.C. Napier housing development, and Bradford and one of his confederates
“both shot at that group people repeatedly but missed them. Bradford and his associates then left
the area with their firearms.” (Case No. 3:15-cr-00088, Doc. No. 384 at 6) (emphasis added).
Not only did Buckholts testify that he and Bradford spent a “significant amount of time at
the jail” going over the plea agreement “line-by-line” and that Bradford “never disputed that he
himself had shot at this group of people including Quineshia,” (id., Doc. No. 732 at 19, 21), the
same factual statement was read at the change-of-plea hearing. At the conclusion of that reading and
after a couple of clarifications from defense counsel unrelated to the issue now before the Court,
Bradford admitted under oath that “the information provided to the Court [was] true and accurate”;
he did, “in fact, do the things that were just described to the Court”; “the actions that were just
described to the Court, were [his] actions”; and “the behavior that’s been described to the Court and
the factual recitations as it related to [him]. . . are the things [he] actually did.” (Case No. 3:16-cr00143, Doc. No. 155 at 38). Bradford also stated that he understood the potential maximum
sentences for all of the crimes charged, that he had been told about the Sentencing Guidelines, that
he understood the Court would ultimately determine the actual Guidelines ranges, and that, while
the parties agreed to argue for a Guideline sentence, the Court was not bound by the Guidelines, but
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could vary (or depart) upward or downward.3
“A guilty plea is a grave and solemn act,” Brady v. United States, 397 U.S. 742, 748 (1970),
and “[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977); see also, Rule 11 Advisory Committee Notes (stating that guilty
pleas under Rule 11 are taken with “great care,” and that such a plea is not a “trifle, but a grave and
solemn act which is accepted with care and discernment”); United States v. Carr, 170 F.3d 572, 576
(6th Cir. 1999). Further, when a “district court carefully conduct[s] a proper, clear, and thorough
plea colloquy, any allegedly misleading advice or information given by counsel cannot constitute
extraordinary circumstances which would justify granting habeas relief.” Curry v. United States, 39
F. App’x 993, 994 (6th Cir. 2002) (citing Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999)).
Bradford has a diploma from Hunters Lane High School (PSR ¶ 95), and there is nothing
unclear about the words surrounding the Underwood incident in the plea agreement. Simply put, it
was not incumbent upon Buckholts to explain to Bradford that “shot at” means that someone “shot
at” something or someone. Further, upon learning from his own client that Bradford did not dispute
shooting at the crowd, it would have been unethical for Buckholts to essentially tell Bradford to lie
in order to reduce his potential exposure under the guidelines.
Bradford’s claim against Tamkin for ineffective assistance of counsel at sentencing also fails.
The essence of his claim here is that he did not put on any proof or call Bradford to testify that he
only “shot into the air,” and not at the crowd of people gathered in the J.C. Napier housing
development on December 22, 2014. Of course, by this point Bradford had already admitted under
As it turned out, Bradford’s offense level was 35, and his criminal history category was VI,
resulting in a Guidelines range of from 292 to 365 months. (Case No. 3:16-cr-143, Doc. No. 151 at 2). The
Court varied downward when it imposed the 264 month sentence.
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oath during his plea colloquy that he had shot at the crowd. Additionally, at the sentencing hearing
Tamkin was presented with testimony from two victims – Quineshia Underwood and her aunt,
Denika Carpenter, along with a witness who was with Bradford immediately before and after the
Carpenter testified that she was in her second floor apartment on the night in question and
heard a volley of shots, followed several seconds later by several shots that appeared to have been
fired at a closer range. After the shooting, Carpenter found a window broken, and a bullet lodged
at the bottom of her kitchen window that apparently had been deflected by the outside screen. (Case
No. 3:16-cr-00143, Doc. No. 156 sat 60-63).
Quineshia’s testimony was more damning. She stated that she had just dropped her child
off at her aunt’s house and was outside smoking with four childhood friends when she saw Bradford
and another man approach. Even though she had known Bradford all of her life, she ignored him
until she heard him say, “[t]here go that ni***er sister right there.” (Id. at 74). Quineshia turned and
saw two gun barrels firing shots in her direction, and heard 13 to 15 shots fired by Bradford and
another man. Quineshia further testified that she could feel the bullets fly past her, and was afraid
to move for fear of being hit, until one of her friends grabbed her and pulled her onto a porch. (Id.
Finally, Jeremiah Haynes, then an acquaintance of Bradford’s, also testified at the sentencing
hearing. Haynes stated that, on the night in question, he was called by Bradford who asked to bring
him a gun. Haynes drove to the J.C. Napier complex, and told Bradford he did not have a gun.
Bradford then left to find a gun and, a few minutes later, Haynes heard gunshots fired. (Id. at 91-98).
When Haynes met up with Bradford later, Bradford told him that he (Bradford) and “Rell” “got to
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shooting at ‘em.” (Id. at 99).
It was against this backdrop that Tamkin chose not to call Bradford as a witness or produce
evidence suggesting that Bradford was merely shooting in the air. There is nothing before the Court
to suggest that this constituted ineffective assistance of counsel. Indeed, “[w]hether to call a witness
and how to conduct a witness’ testimony are classic questions of trial strategy that merit Strickland
deference.” Rayborn v. United States, 489 F. App’x 871, 878 (6th Cir. 2012). Bradford has provided
nothing to overcome that deference.
Even if the failure to call Bradford as a witness was ineffective, Bradford cannot show
prejudice. First, the idea that Bradford merely shot into the air and never intended to hurt anyone
was already before the Court because Bradford told the probation department as much during a
presentence interview. Tamkin also argued at sentencing that the evidence could be viewed as
suggesting that Bradford merely shot into the air because of the bullet found in Carpenter’s second
floor window frame. The Court was entirely unconvinced by this possibility, finding that “[c]ertainly
by more than a preponderance there is a wealth of evidence to question Mr. Bradford’s explanation.”
(Id. at 123). Seeing that Bradford was about to be sentenced, it would make no sense for Tamkin
to call him to the stand and have him testify that he was only shooting into the air.
Moreover, Bradford’s present assertion that he was merely shooting into the air does not
square with either the plea colloquy as discussed previously, or with his allocution. Just before
sentencing, Bradford stated:
. . . I went and got a gun and looked for him [Underwood] and stuff. But I never had
any intentions of killing him. I never said I was going to kill him or – and when I
seen them people right there, I did not see Quineshia Underwood. And I stood on that
from day one. I did not see her. I did not know she was right there. I pled guilty to
shooting at a crowd of people, and she happened to been right there, and I pled guilty
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to shooting at her because she was right there. There was a crowd of people right
there. But I never knew at the time that it was her right there. . . .
And – but I just wanted you to know, like, me trying to hurt somebody physically,
like trying to kill somebody or anything, it never crossed my mind. And I know it
could have happened. It easily could have happened, you know. Like she said, if the
window wasn't – if she didn’t pull the window just in time or if nobody didn't grab
her out the way, I know it could have happened.
But it didn't. And I feel like I shouldn’t be sentenced for what could have happened
on that situation.
(Id. at 256-60, 261-62).
To argue that Bradford never intended to kill anyone is one thing, but it is quite another to
suggest that Bradford only shot into the air. His own allocution belies that, and his intent – or lack
thereof – was thoroughly advanced by Tamkin. Tamkin argued that Bradford’s only “beef “ was
with Underwood, not his sister, and there was “no proof this Court has that this was a premeditated
act to kill somebody.” (Id. at The Court was entirely unconvinced by this argument, stating:
So the Court is persuaded beyond a preponderance of the evidence that Mr. Bradford
did engage in shooting. The Court’s persuaded that there were multiple people there,
even – but there is no proof that Mr. Underwood’s there. Quite the contrary. He fired
multiple shots at a group of people, specifically at Ms. Quineshia Underwood. I
think he did so deliberately, intentionally, with premeditation because of his feelings
towards Mr. Underwood and the state of his mind at that time. The proof before the
Court, especially the exhibits and pictures shows and confirms again there were
multiple shots with multiple bullets in the near vicinity.
Specifically, turning to Ms. Carpenter’s testimony that the Court finds persuasive, his
actions there could have caused physical injury, if not death, and luckily that didn’t
occur. The same is true with Ms. Underwood.
(Id. at 119-120). Calling Bradford as a witness simply would not have changed the outcome because
his sentence would have been the same, if not worse. See Harrington v. Richter, 562 U.S. 86, 108
(2011) (stating that where a lawyer has “reason to question the truth of his client’s account” the
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lawyer is not obligated by Strickland to pursue a line of inquiry that “might be harmful to the
defense” and “expose” a “story” that is an “invention”).
Bradford’s claims regarding the ineffectiveness of Buckholts and Tamkin fail.
On the basis of the foregoing, Bradford’s Motions to Vacate, Set Aside, or Correct Sentence
will be denied.
An appropriate Order will enter.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Case 3:20-cv-00526 Document 13 Filed 02/16/21 Page 17 of 17 PageID #: 94
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