Braden v. United States

• Decision Date: 13 August 2019
• Docket Number: NO. 3:11-cv-01006,3:11-cv-01006
• Parties: STEVE ALLEN BRADEN, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

STEVE ALLEN BRADEN, Movant, v. UNITED STATES OF AMERICA, Respondent.

NO. 3:11-cv-01006

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

August 13, 2019

JUDGE CAMPBELL

MEMORANDUM OPINION

In October 2011, Steve Allen Braden filed a pro se motion under 28 U.S.C. § 2255 (Doc. No. 1) to vacate, set aside, or correct a sentence previously imposed by this Court. See United States v. Braden, 3:08-cr-00148, Doc. No. 114 (M.D. Tenn. July 22, 2009) [hereinafter cited as "Crim. Doc. No. ___"]. As explained below, this case has developed an extensive and complex procedural history since that time. It is currently before the Court on remand from the Sixth Circuit "to consider the arguments presented in Mr. Braden's initial pro se § 2255 petition."¹ Braden v. United States, 817 F.3d 926, 933 (6th Cir. 2016). And for the following reasons, Mr. Braden is not entitled to relief under Section 2255 and this action will be dismissed.

I. Background

A. Criminal Case

In June 2008, an indictment charged Mr. Braden with being a felon in possession of firearms in violation of 18 U.S.C. § 922(g) ("Count 1") and possession with intent to distribute cocaine base and cocaine in violation of 21 U.S.C. § 841 ("Count 2"). (Crim. Doc. No. 1.) At the initial appearance on July 28, 2008, the Court appointed counsel to represent Mr. Braden.(Crim. Doc. No. 7.) In a letter dated August 18, Mr. Braden requested another attorney. (Crim. Doc. No. 12.) Counsel followed up with a formal motion to withdraw, (Crim. Doc. No. 13), which the Court granted (Crim. Doc. No. 14).

Attorney Jerry Gonzalez entered a notice of appearance on behalf of Mr. Braden on September 5. (Crim. Doc. No. 16.) On December 19, 2008, Mr. Gonzalez filed a motion to suppress on Mr. Braden's behalf. (Crim. Doc. No. 33.) He attached a pro se motion drafted by Mr. Braden "for the substantive arguments made therein," (Crim. Doc. Nos. 33 at 1, 33-1), as well as a "short brief in support drafted by counsel" (Crim. Doc. Nos. 33 at 1, 34 (footnote omitted).) The Government filed a response, (Crim. Doc. No. 36), and the Court set a hearing on the motion (Crim. Doc. No. 37).

On January 12, 2009, Mr. Gonzalez filed a motion to withdraw "based on the defendant's wish to represent himself or, alternatively, to be assigned as standby counsel." (Crim. Doc. No. 39 at 4.) Mr. Braden opposed Mr. Gonzalez's request to be assigned as standby counsel. (Crim. Doc. No. 42.) After a hearing, the Court granted the motion "to the extent Mr. Braden will represent himself and Mr. Gonzalez will be assigned as standby or elbow counsel." (Crim. Doc. No. 43.)

On January 30, 2009, the Court held a hearing on the motion to suppress at which Mr. Braden represented himself. (Crim. Doc. No. 49; Crim. Doc. No. 71 (transcript).) The Court denied the motion at the conclusion of the hearing. (Crim. Doc. No. 49; Crim. Doc. No. 71 at 250.) Mr. Braden later filed a motion to reconsider the denial of his motion to suppress, (Crim. Doc. No. 74), and the Court denied it (Crim. Doc. No. 75).

On February 18, 2009, the Government obtained a superseding indictment that included Counts 1 and 2 from the original indictment and added a charge for possession of firearms infurtherance of drug trafficking activity in violation of 18 U.S.C. § 924(c) ("Count 3"). (Crim. Doc. No. 66.) One month later, the second superseding indictment charged Mr. Braden with the same three counts—the only change was an explicit notation in Count 2 that the term "cocaine base" referred to "crack cocaine." (Crim. Doc. No. 76 at 2.)

On March 30, 2009, Mr. Braden filed a motion to re-appoint Mr. Gonzalez to fully represent him, (Crim. Doc. No. 79), and the Court granted it (Crim. Doc. No. 80).

On April 3, 2009, the Government filed an Information Alleging Prior Conviction (21 U.S.C. § 851) ("851 Information"). (Crim. Doc. No. 83.) The 851 Information alleged that Mr. Braden was previously convicted of one felony drug offense—the sale of under .5 grams of cocaine in Case Number II-894-202 in the Criminal Court of Williamson County, Tennessee. (Id. at 1.) The 851 Information enhanced Mr. Braden's statutory penalties for Count 2. (Id.)

In anticipation of trial, Mr. Gonzalez filed three motions in limine: a motion to exclude references to anything gang related (Crim. Doc. No. 86); a motion to exclude recorded jail calls (Crim. Doc. No. 88); and a motion to restrict the Government to introducing evidence of only one prior felony conviction when establishing the necessary elements for Count 1, being a felon in possession of firearms (Crim. Doc. No. 89). The Court granted the first and third motions, (Crim. Doc. No. 98), and denied the second motion, (id.), although the Government accepted Mr. Gonzalez's proposed corrections to the jail call transcripts (Crim. Doc. Nos. 96 and 96).

Trial commenced on April 20, 2009, (Crim. Doc. No. 98), and the jury convicted Mr. Braden on all three counts the next day (Crim. Doc. No. 106). At sentencing, the Court determined that Mr. Braden was an Armed Career Criminal under the Armed Career Criminal Act ("ACCA") and a Career Offender under the United States Sentencing Guidelines (the "Guidelines"). Braden, 817 F.3d at 928. The Court sentenced him to concurrent terms of 40years' imprisonment on Count 1 and Count 2, and a consecutive term of 5 years' imprisonment on Count 3. (Crim. Doc. No. 114 at 3.)

Mr. Braden appealed. (Crim. Doc. Nos. 116 at 117.) Mr. Gonzalez filed a motion to withdraw as counsel in the Sixth Circuit, and the Court granted it. United States v. Braden, No. 09-5854, Doc. Nos. 20 and 21 (6th Cir. Oct. 27, 2009). On November 9, 2009, attorney Melvin Houston entered an appearance on Mr. Braden's behalf. Id., Doc. No. 28 (6th Cir. Nov. 9, 2009). The Sixth Circuit later affirmed Mr. Braden's convictions. (Crim. Doc. No. 130.)

B. Section 2255 Proceedings

Mr. Braden filed a pro se motion under Section 2255 in October 2011. (Doc. No. 1.) Mr. Braden "alleged the ineffective assistance of trial counsel, flawed jury instructions that resulted in a constructive amendment of his indictment, illegal search and seizure, insufficient arrest warrant, insufficient search warrant, racial discrimination in the selection of the jury, and the ineffective assistance of appellate counsel." Braden v. United States, No. 14-6395, Doc. No. 11-2 at 1-2 (6th Cir. Apr. 16, 2015). The Government filed a response, (Doc. No. 21), accompanied by an affidavit from trial counsel Mr. Gonzalez (Doc. No. 21-3.) The Court then "appointed counsel to represent Mr. Braden and instructed newly appointed counsel to 'file an amended motion to vacate if necessary.'" Braden, 817 F.3d at 929.

In June 2012, attorney Isaiah Gant entered an appearance on behalf of Mr. Braden. (Doc. No. 28.) Through counsel, Mr. Braden filed an amended motion. (Doc. No. 33.) The Sixth Circuit summarized the claims in the amended motion as follows:

18 U.S.C. § 922(g) is unconstitutional on the basis that it does not criminalize an offense affecting "interstate" commerce; therefore, Braden's indictment did not charge an offense which Congress could validly criminalize under the Commerce Clause. Moreover, Braden asserted that the government failed to present proof that the firearm ever moved "in" commerce, interstate or otherwise, and the jury never found a connection to "interstate" commerce. The amended motion alsoalleged that the jury instructions on Count 1 were improper; Braden was improperly sentenced under the Armed Career Criminal Act ("ACCA") because his prior convictions were not found by a grand jury, alleged in the indictment, or found by the jury beyond a reasonable doubt; and trial counsel was ineffective for failing to raise arguments relating to the interstate commerce issue and the ACCA.

Braden, No. 14-6395, Doc. No. 11-2 at 2. This Court "construed the amended § 2255 motion to supersede the pro se petition and deemed the claims in the pro se petition to be waived.² The [district] court then determined that the claims presented in the amended petition did not warrant relief[,]" dismissed this action, and declined to issue a Certificate of Appealability ("COA"). Id.

Mr. Braden filed a notice of appeal. (Doc. No. 48.) "While his appeal of the denial of the § 2255 motion was pending, Mr. Braden filed a pro se motion pursuant to Federal Rule of Criminal Procedure 59(e) alleging more ineffective assistance of counsel claims.³ The district court denied this motion as well." Braden, 817 F.3d at 929.

The Sixth Circuit initially "granted a limited certificate of appealability solely to address the question of whether the district court erred in failing to consider Mr. Braden's pro se petition." Id. At the same time, the Sixth Circuit found that reasonable jurists would not "debate the district court's conclusions with respect to the claims presented in the amended motion." Braden, No. 14-6395, Doc. No. 11-2 at 4.

About one month later, the Sixth Circuit granted Mr. Gant's motion to withdraw and appointed new counsel to represent Mr. Braden on appeal. (Doc. No. 64.) Attorney Kevin Schad filed a notice of appearance on Mr. Braden's behalf in July 2015. Id., Doc. No. 20 (6th Cir. July 10, 2015). Mr. Braden, through counsel, then filed a motion to expand the COA in lightof Johnson v. United States, 135 S. Ct. 2551 (2015), and the Sixth Circuit "expanded the certificate of appealability to encompass the issue of whether Mr. Braden remain[ed] an Armed Career Offender under the ACCA." Braden, 817 F.3d at 929.

In March 2016, the Sixth Circuit affirmed "Mr. Braden's classification as an Armed Career Criminal under the ACCA," and remanded this action for the Court "to consider the arguments presented in Mr. Braden's initial pro se § 2255 petition." Id.

In July 2016, Mr. Braden filed a pro se amended motion in this Court, intended to supplement rather than supersede his initial pro se motion. (Doc. No. 74 at 1.) The Court appointed counsel, (Doc. No. 80),...