Grady v. United States of America

Filing 11

SCREENING ORDER signed by Chief Judge William C Griesbach on 5/18/2015 DENYING 9 Second Amended Motion to Vacate, Set Aside or Correct Sentence (2255); denying 3 MOTION for Stay of Execution of Sentence of Death on behalf of unborn and partial born individuals; and denying 10 Second Motion to Alter or Amend Judgment. A certificate of appealability is denied. (cc: all counsel via CM/ECF, Francis Gerald Grady by U.S. Mail) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FRANCIS GRADY,
Petitioner,
v.

Case No. 15-C-330

UNITED STATES OF AMERICA,
Respondent.

SCREENING ORDER

On March 31, this court dismissed Petitioner’s § 2255 motion, without prejudice, due to its
length and improper form. Petitioner has now used the correct form and brought four claims, which
I address below.
1. Claim 1
First, Petitioner argues his appellate counsel was ineffective for failing to file a complete
transcript that included all of the jury instructions. Specifically, he asserts that there was a
discrepancy between how this court instructed the jury and the language of the indictment. This
court told the jury: “To sustain the charge of Count 1, the government must prove . . . that the
defendant attempted to damage or did damage, by means of fire, the property identified in the
indictment.” (Case No. 12_CR-177, ECF No. 93, Tr. 190 at 6-10.) In contrast, the indictment
charges Grady with maliciously damaging the “building” known as Planned Parenthood, in Grand
Chute, Wisconsin.

Grady asserts that the government only proved, at best, that he damaged “non-building
property” rather than the building itself, which is what the indictment charges. He is wrong. The
government offered undisputed evidence that the building itself was damaged. Mark Teper, the
facilities manager for Planned Parenthood described the damage to the building as follows:
The paint had boiled up on the walls and on the metal. The floor tile was melted,
the room was soot covered, ceiling tiles were soot covered. There were some things
in the room that had been exposed of, a chair that had been sitting just underneath
the window and from the heat of the fire had melted the seat and melted some of the
blinds into it.
(Id. at 52.) The walls, floor and ceiling are parts of the building.
The evidence would be sufficient even absent this testimony, however. As Grady concedes,
the instruction includes the word “attempt,” which is also a crime under 18 U.S.C. § 844(i):
“Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or
an explosive, any building, vehicle, or other real or personal property used in interstate or foreign
commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less
than 5 years and not more than 20 years, fined under this title, or both.” Thus, the jury could have
found him guilty of attempted damage to the property described in the indictment even if there had
been no evidence of damage to the building itself. Since the grand jury charged Grady with
maliciously damaging a building, it necessarily charged him with attempting to damage a building.
Rule 31(c)(1) of the Federal Rules of Criminal Procedure permits a verdict on “an offense
necessarily included in the offense charged.” Not surprisingly, defense counsel did not object to the
instruction, and appellate counsel did not raise the issue on appeal. Since the issue is meritless, it
was not ineffective assistance for counsel to fail to raise it.
Similarly, Grady argues the evidence was insufficient to convict him because the prosecutor
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was “evasive” in response to this Court’s question asking whether there was actual evidence of
damage. Given the evidence cited above, the argument fails. But again, because Petitioner could
have been convicted of the attempt, that does not matter.
Petitioner also argues this Court prejudiced the jury by telling the alternate juror that he
might read about the verdict in the newspaper because “it sounds like it’s that kind of case.” (Id.,
ECF No. 94 at 153.) This was offered as an alternative to the clerk calling him with the result, if
he wanted to know. Petitioner does not explain why telling an alternate juror that the case might
be newsworthy would have added any conceivable taint to the case, and thus it is unsurprising that
counsel never objected or raised the matter on appeal.
Finally, Grady asserts that jurors could not reasonably infer that the Planned Parenthood
purchased office supplies from outside the state. Here again, Grady’s argument is belied by the
record. Teper explicitly testified that Planned Parenthood purchased office supplies from national
office supply stores and medical supplies from throughout the country. (ECF 93 at 58.) This Court
instructed the jury that “you may find an effect on interstate commerce if you find that the business
purchased medical and office supplies from outside the State of Wisconsin.” (Id., Tr. 190, 5-24.)
Petitioner argues that the jury therefore had to find that Planned Parenthood purchased medical and
office supplies from out of state, and because there were office supply stores within close range of
the Planned Parenthood facility, it had no basis for so concluding.
This is another frivolous argument. Neither the indictment nor the statute has anything to
do with office supplies. In the context of the trial, the purchase of office supplies was simply one
way of demonstrating a relationship to interstate commerce. The jury “may” have found that the
clinic purchased both medical and office supplies (id.), but it was not required to.
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2. Ground 2
Grady alleges his counsel was ineffective at sentencing. First, he alleges that counsel should
have prepared an independent presentence investigation report, but there is no suggestion that such
a report would have made a difference. Certainly it is not ineffective assistance.
Second, he asserts that an earlier criminal case should not have been counted in the criminal
history because it was based on a warrantless arrest. But a § 2255 proceeding is not the place to relitigate an eleven-year-old state felony. There is no sound reason why the state charge should not
have been considered.
Third, he claims counsel interfered with his right to plead guilty to count two, for intentional
damage to the property of Planned Parenthood. He claims he wanted to plead guilty to intentionally
damaging the building’s window, while pleading not guilty to the arson charge alleged in count one.
Count two required a showing of intent to damage property based on the fact that the facility was
engaged in providing reproductive health services. Had Grady pled guilty to that charge, he would
have been admitting an intent to cause property damage due to the nature of the business housed in
the building. A jury would have had a difficult time believing that he did not attempt to cause
damage to the same building by means of fire, as charged in count one.
3. Ground 3
Third, Petitioner claims the prosecution failed to turn over evidence favorable to the
Petitioner. Specifically, he asserts the Department of Justice had a theory of imminence, set forth
in a 2010 memo regarding Shaykh Anwar al-Aulaqi (a U.S. citizen killed in a drone strike in
Yemen), that would have allowed Petitioner to argue that his actions in burning an abortion clinic
were an effort to prevent an imminent threat against unborn lives. This does not state a claim. A
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government’s memorandum regarding a drone strike half-way around the world does not constitute
“evidence” in a criminal action involving arson at a Wisconsin abortion clinic. The prosecution was
in no way obligated to scour all government records and provide the Defendant with memoranda
like the one referenced.
4. Ground 4
Finally, Petitioner asserts that the jury could not have found him guilty because he
consistently denied wanting to burn the building down. He styles this claim, as he must, as an
ineffective assistance claim, but it is unclear how counsel’s performance is implicated. In any event,
it is true that the Petitioner testified he did not want to burn the building “down,” but that was not
the charge. Instead, he admitted that he intended to burn the building. (Id., Tr. 170.) That is
enough evidence for the jury. In fact, given the circumstances of Grady breaking the building’s
window, pouring gasoline inside, and starting it on fire, the jury did not need to hear his testimony
at all to reach the obvious conclusion. Petitioner’s post-verdict explanations about funeral rites are
merely quibbles with the obvious and overwhelming fact that he poured gasoline into a building and
set it on fire.
For the reasons stated above, the petition is DISMISSED. The second motion to alter or
amend a judgment [10] is DENIED. The Petitioner alleges this court is in league with prosecutors
and a larger pro-abortion political movement designed to stifle his arguments, but Grady was
convicted of setting fire to a building, not for his moral opposition to abortion. There is no
persuasive reason to allow the Petitioner to file the kind of multi-count behemoth § 2255 action he
apparently desires, particularly in light of the frivolous nature of the claims described above. The
motion for stay of execution [3] is DENIED. A § 2255 motion is limited to a federal inmate’s
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challenge to his own conviction and sentence; it does not encompass victims of abortion or other
third parties. 28 U.S.C. § 2255(a).
I do not find that reasonable jurists could debate the outcome of these proceedings, nor is
there any denial of a significant constitutional right. Accordingly, a certificate of appealability is
DENIED as well.
SO ORDERED this 18th day of May, 2015.

/s William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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