NEEDREPLACE, Nos. 4:13–cv–121

CourtNew York District Court
Writing for the CourtB. AVANT EDENFIELD
Citation7 F.Supp.3d 1272
PartiesMartin J. BRADLEY, III, Petitioner, v. UNITED STATES of America, Respondent.
Decision Date26 March 2014
Docket NumberNos. 4:13–cv–121,4:05–cr–59.

7 F.Supp.3d 1272

Martin J. BRADLEY, III, Petitioner,
v.
UNITED STATES of America, Respondent.

Nos. 4:13–cv–121, 4:05–cr–59.

United States District Court, S.D. Georgia, Savannah Division.

Signed March 25, 2014
Filed March 26, 2014


Motion granted in part and denied in part.

[7 F.Supp.3d 1273]

Christopher Cullom Burris, Timothy H. Lee, King & Spalding, LLP, Donald F. Samuel, Garland, Samuel & Loeb, PC, Janice A. Singer–Capek, Thompson & Singer, PA, Atlanta, GA, Jeffrey S. Bucholtz, King & Spalding, LLP, Washington, DC, for Petitioner.

R. Brian Tanner, U.S. Attorney's Office, Savannah, GA, for Respondent.


ORDER
B. AVANT EDENFIELD, District Judge.
I. INTRODUCTION

Petitioner Martin J. Bradley, III (“Bradley”) petitions the Court for a Certificate of Appealability (“COA”) so that he may challenge the Court's denial of his habeas corpus motion. ECF No. 19. Because reasonable jurists could disagree as to some of his arguments, his motion is GRANTED IN PART and DENIED IN PART.

II. BACKGROUND

This Court presided over the Petitioner's criminal trial for Medicaid fraud. A jury convicted him on most counts of the indictment, ECF No. 1 at 2, and he unsuccessfully took direct appeal. Id. at 2–3. Bradley then brought this federal habeas action under 28 U.S.C. § 2255. Id. He alleged multiple errors, including ineffective assistance of trial and appellate counsel, numerous jury irregularities, ex parte communications between the Court and jury, and incorrect sentencing. Id.

This Court denied Bradley habeas relief on December 3, 2013. ECF No. 17. He timely moved for a COA, ECF No. 19, and the United States objected. ECF No. 23.

III. ANALYSIS A. Standard of Review
1. Certificate of Appealability

“Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA ...” Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see 28 U.S.C. § 2253(c). A low but non-trivial standard governs the Court's decision whether to issue a COA. Specifically, the Court will issue a COA “where a petitioner has made a substantial showing of the denial of a constitutional right.” Miller–El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotations omitted); see 28 U.S.C. § 2253(c)(2). Petitioner “must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller–El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotations omitted).

2. Ineffective Assistance of Counsel

In each of his four enumerations of error, Bradley argues in some way that his counsel was constitutionally ineffective. ECF No. 19–1 at 5, 16, 18, 23 (arguing in the alternative), 25. Strickland v. Washington and its progeny govern those

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claims. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hernandez v. Sec'y, Fla. Dep't of Corrs., 408 Fed.Appx. 316, 318 (11th Cir.2011) (citing Evitts v. Lucey, 469 U.S. 387, 396–97, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)) (noting the Constitution guarantees defendant effective assistance of counsel on first direct appeal).

“[T]o establish constitutionally ineffective counsel, a defendant must show that (1) his attorney's performance was deficient, and (2) the deficient performance prejudiced the defense.” Puiatti v. Sec'y, Fla. Dep't of Corrs., 732 F.3d 1255, 1278 (11th Cir.2013) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To determine performance deficiency, courts ask “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 1278–79.

But “judicial scrutiny of an attorney's performance is appropriately highly deferential,” and “must indulge a strong presumption that counsel's conduct” was proper. Id. at 1279. In fact, “to show that the conduct was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel [took].” Id. While the Constitution guarantees competent counsel, “[i]t does not insure that defense counsel will recognize and raise every conceivable ... claim.” Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

B. COA 1. Failure to Present Materiality Defense

Bradley first requests COA as to whether his counsel's failure to defend as to materiality at trial constituted ineffective assistance of counsel. ECF No. 19–1 at 5–16. Bradley cogently argues that 1) counsel's failure to defend as to materiality cannot be rationalized as a strategic position; 2) the unraised materiality defense would have created a reasonable doubt about an essential element of the Government's case; and 3) the Court's view of a footnote in an Eleventh Circuit opinion from the direct appeal are all at least debatable, and thus worthy of a COA. Id. The Government directs the Court to two Eleventh Circuit cases that apply Strickland, contending that no reasonable jurist could debate the denial of relief given the exacting standards of the precedent. ECF No. 23 at 3–4 (citing Dill v. Allen, 488 F.3d 1344, 1357 (11th Cir.2007); Chandler v. United States, 218 F.3d 1305, 1318 (11th Cir.2000) (en banc)).

In Chandler, the Eleventh Circuit held that “counsel's reliance on particular lines of defense to the exclusion of others—whether or not he investigated those other defenses—is a matter of strategy and is not ineffective unless the petitioner can prove the chosen course, in itself, was unreasonable.” 218 F.3d at 1318. So, the Court must focus on whether trial counsel's chosen course was debatably unreasonable. The Court sees absolutely no debate as to whether Bradley's trial counsel acted reasonably because Roy Black and his team obtained acquittal on nine counts. ECF No. 553, 4:05–cr–59. Bradley avoids mentioning this in his brief, but it is undeniable evidence that trial strategy worked, albeit not as well as Bradley would have liked. This success, coupled with the Eleventh Circuit principle that “constitutionally sufficient assistance of counsel does not require presenting an alternative ... theory of the case” forecloses debate on the effectiveness and reasonableness of Bradley's trial counsel. Dill, 488 F.3d at 1357.

As noted, Bradley's presentation on this issue had a very intuitive appeal. ECF No. 19–1 at 7–16. The standard for a

[7 F.Supp.3d 1275]

COA is not, however, the ability to make a logical argument on the subject. While Bradley's arguments may appeal to logicians, the arguments lack citation to cases demonstrating that jurists could debate his theory. This stands in contrast to other sections of his brief, which are replete with citations demonstrating debate. The Court DENIES COA on the issue of whether Bradley's counsel's failure to defend as to materiality at trial constituted ineffective assistance of counsel.

2. Court's Supplemental Instruction

During Bradley's trial, this Court gave the jury a supplemental RICO instruction that improperly applied coercive pressure on the jury to reach a verdict. ECF No. 17 at 16–17. The Court concluded that the instruction did cause Bradley actual prejudice, id. at 17, but that because Bradley's attorneys did not raise the instruction on direct appeal, he was barred from raising it on habeas review, id. at 19–21. In doing so, the Court necessarily held that Bradley did not have cause for his failure to argue the issue on appeal: it was neither impossible for Bradley to discover the argument, nor did he receive ineffective assistance of counsel because the arguments counsel did raise on appeal were not substantially weaker. Id.

Bradley claims that reasonable jurists can dispute these findings. ECF No. 19–1 at 16–18. He alleges that no “competent appellate counsel” could have decided to forego the...

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