Steve A. Braden, Petitioner-Appellant,
United States of America, Respondent-Appellee.
Appeal from the United States District Court for the Middle District of Tennessee at Nashville. Nos. 3:08-cr-00148-1; 3:11-cv-01006-William J. Haynes, Jr., Chief District Judge.
Kevin M. Schad, FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.
Clay T. Lee, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.
Before: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.
DAMON J. KEITH, CIRCUIT JUDGE.
Following a jury trial in 2009, Petitioner-Appellant Steve Allen Braden ("Mr. Braden") was convicted of and sentenced for three drug- and firearms-related offenses. At sentencing, Mr. Braden was determined to be an Armed Career Criminal under the Armed Career Criminal Act ("ACCA"). In 2011, Mr. Braden filed a pro se petition to vacate his convictions pursuant to 28 U.S.C. § 2255. The district court appointed counsel to represent Mr. Braden as to his petition. The counsel thereafter filed another petition seeking to raise more claims than those identified in Mr. Braden's pro se petition. The district court denied relief. Mr. Braden timely appealed. On appeal, Mr. Braden argues that the district court erred in dismissing his pro se petition, and he argues, for the first time on appeal, that he is not an Armed Career Criminal. For the following reasons, we REMAND with instructions for the district court to consider Mr. Braden's pro se petition, but we AFFIRM Mr. Braden's classification as an Armed Career Criminal under the ACCA.
In 2009, Mr. Braden was convicted of one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841; one count of possession of a firearm in furtherance of drug trafficking activity in violation of 18 U.S.C. § 924(c); and one count of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g). Based on his prior convictions, he was classified as an Armed Career Criminal pursuant to the ACCA and as a Career Offender under the United States Sentencing Guidelines (the "Guidelines"). He was sentenced to concurrent terms of forty years of imprisonment on counts one and two, and a consecutive term of five years of imprisonment on count three. He appealed his convictions and sentence to this court, and we affirmed. United States v. Braden, No. 09-5854 (6th Cir. Oct. 28, 2010).
In 2011, Mr. Braden, acting pro se, filed a petition to vacate his convictions pursuant to 28 U.S.C. § 2255 ("§ 2255"). In his petition, he asserted multiple claims: ineffective assistance of trial counsel; flawed jury instructions that resulted in a constructive amendment; illegal search and seizure; insufficient arrest warrant; racial discrimination in the selection of the jury; and ineffective assistance of appellate counsel. See Braden v. United States, No. 14-6395 (6th Cir. April 16, 2015). The Government opposed the petition, and then the district court appointed counsel to represent Mr. Braden and instructed newly appointed counsel to "file an amended motion to vacate if necessary."
Newly appointed counsel filed an amended motion raising additional claims regarding the § 922(g) gun charge. In that motion, defense counsel purported to supplement the prior pro se filing, rather than supersede it, stating: "This amended motion does not abrogate any of the claims Mr. Braden raises in his pro se filings. Rather, it supplements claims A through J of Mr. Braden's pro se motion by adding the claims set forth below."
In denying relief as to the § 2255 petition, the district court stated that it "deem[ed] the amended petition to supersede the pro se petition and the claims therein." The district court further stated that "[u]nless adopted and supported by legal memorandum, the [c]ourt deems the claims in the pro se and first amended petition to be waived." The court then denied the claims raised by appointed counsel in the amended motion as meritless. Mr. Braden appealed.
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. The district court denied this motion as well. In denying the motion, the district court referred to its prior ruling on the § 2255 petition, noting that it had "considered the record as a whole and all of the claims raised in both the original and amended motion, but addressed only those which had some substance. The [c]ourt concluded that [Mr. Braden] was not entitled to relief."
Because a certificate of appealability had not been issued by the district court, we construed Mr. Braden's notice of appeal as an application for a certificate of appealability. Initially, this court 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. However, this court later expanded the certificate of appealability to encompass the issue of whether Mr. Braden remains an Armed Career Offender under the ACCA in light of the United States Supreme Court's holding in Johnson v. United States, -- U.S. --, 135 S.Ct. 2551 ...