United States District Court, M.D. Tennessee, Nashville Division
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE
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.”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.
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).
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.
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.)
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).
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 in
furtherance 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.)
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).
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.
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
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 40 years'
imprisonment on Count 1 and Count 2, and a consecutive term
of 5 years' imprisonment on Count 3. (Crim. Doc. No. 114
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.)
Section 2255 Proceedings
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.
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 also alleged 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
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. 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”).
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. The district court denied this
motion as well.” Braden, 817 F.3d at 929.
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.
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 light of 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.
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.”
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), and attorney James Cartwright entered an
appearance on Mr. Braden's behalf in February 2017 (Doc.
No. 85). Mr. Cartwright filed a “Statement Proferring a
List of Issues to Resolve.” (Doc. No. 97.) Shortly
thereafter, Mr. Cartwright filed a motion to withdraw,
representing that Mr. Braden “believes the [initial pro
se] petition speaks for itself, despite Counsel's effort
to organize and clarify.” (Doc. No. 99 at 1.) The Court
granted the motion and set a supplemental briefing schedule.
(Doc. No. 100.)
Braden filed a pro se supplemental brief, (Doc. No. 108-1),
the Government filed a response, (Doc. No. 116), and Mr.
Braden filed a reply in February 2018 (Doc. No. 118).
Filings and Claims Currently Before the Court
Filings Before the Court
stated above, the Sixth Circuit remanded this action for the
Court “to consider the arguments presented in Mr.
Braden's initial pro se § 2255 petition.”
Braden, 817 F.3d at 933. The initial pro se motion
is eight pages, (Doc. No. 1), and it is accompanied by over
500 pages of attachments comprised of additional argument,
citations to legal authority, and excerpts of state and
federal court records (Doc. Nos. 1-1 to 1-5). Mr. Braden also
alternated between pro se and non-pro se status as this
proceeding progressed, both before and after remand.
this procedural complexity, the Court specifies the filings
that are before it as it fulfills its mandate on remand: the
entire initial pro se motion, (Doc. Nos. 1 and 1-1 to 1-5);
the Government's response, (Doc. Nos. 21 and 21-1 to
21-2), including the affidavit of trial counsel Jerry
Gonzalez (Doc. No. 21-3); Mr. Braden's two pro se replies
in support of his initial pro se motion, (Doc. Nos. 44 at
51); Mr. Braden's pro se amended motion, (Doc. No. 74);
and Mr. Braden's pro se supplemental brief, (Doc. No.
108-1), the Government's response, (Doc. No. 116), and
Mr. Braden's reply (Doc. No. 118).
notes about the Court's consideration of these
filings-Mr. Braden filed his second pro se reply in support
of his initial pro se motion (Doc. No. 51) while this action
was on appeal, and he filed his pro se amended motion (Doc.
No. 74) without leave of the Court after this action was
remanded. Given Mr. Braden's pro se status, and in the
interest of justice, the Court will consider these filings
despite these irregularities. Additionally, the Court
considers Mr. Braden's entire initial pro se motion even
though, at one point in his supplemental brief, Mr. Braden
states that he “will stipulate and waive claims in the
pro se filed original 2255 petition” and “now
only challenges all ineffective assistance of counsel claims
by” his trial counsel, direct appeal counsel, appointed
Section 2255 counsel, appellate Section 2255 counsel, and
state trial counsel. (Doc. No. 108-1 at 8.) That is because
Mr. Braden contradicts this supposed waiver elsewhere in the
supplemental brief, specifically requesting that the Court
“rule on each and all of the issue raised” in a
list of filings that includes his initial pro se motion.
(Id. at 7.) Finally, the Court does not consider the
supplemental brief to bring new, independent claims because
Mr. Braden states that the supplemental brief “is
presented to the district court . . . to rule upon the
original 2255 motion.” (Doc. No. 118 at 7.) The
supplemental brief, Mr. Braden explains, is simply
“meant to assist the district court due to [the]
voluminous nature of the 2255 motion.” (Id. at
notes about filings the Court is not considering-Mr.
Braden filed a “Motion for Fraud up on [sic] the Court
by (MNPD) Metro Nashville Police Department Law Enforcement
Officers, ” (Doc. No. 75), as well as a supporting
brief (Doc. No. 76). This motion is among the filings Mr.
Braden requests the Court “rule on” in his
supplemental brief. (Doc. No. 108-1 at 8.) But the Court
already denied this motion without prejudice to Mr.
Braden's then-appointed counsel, Mr. Cartwright, raising
the issues presented therein at a later date. (Doc. No. 95.)
Mr. Cartwright did not renew this motion prior to withdrawal,
and Mr. Braden had ample opportunity to raise the issues in
this motion through the supplemental briefing allowed by the
Court. The Court also is not considering Mr. Cartwright's
“Statement Proferring a List of Issues to Resolve,
” (Doc. No. 97), as Mr. Braden's apparent
displeasure with this filing precipitated Mr.
Cartwright's withdrawal (Doc. No. 99 at 1). Again, Mr.
Braden had an opportunity to address any issues presented by
Mr. Cartwright's Statement through his supplemental
Claims Before the Court
Sixth Circuit identified the seven categories of claims in
Mr. Braden's initial pro se motion as follows: (1)
ineffective assistance of trial counsel; (2) flawed jury
instructions that resulted in a constructive amendment of his
indictment; (3) illegal search and seizure; (4) insufficient
search warrant; (5) insufficient arrest warrant; (6) racial
discrimination in the selection of the jury; and (7)
ineffective assistance of appellate counsel. Braden,
No. 14-6395, Doc. No. 11-2 at 1-2. The Court has determined
that this motion also includes a Brady claim. (Doc.
No. 1-1 at 4; Doc. No. 1-4 at 2, 5, 32.) To the extent the
Court can discern them, the Court will address Mr.
Braden's specific sub-claims within these broad
categories of claims as necessary in the analysis below.
Standard of Review
“To warrant relief under section 2255, a petitioner
must demonstrate the existence of an error of constitutional
magnitude which had a substantial and injurious effect or
influence on . . . the jury's verdict.”
Jefferson v. United States, 730 F.3d 537, 549-50
(6th Cir. 2013) (quoting Griffin v. United States,
330 F.3d 733, 736 (6th Cir. 2003)).
a factual dispute arises in a § 2255 proceeding, an
evidentiary hearing is required to determine the truth of the
petitioner's claims.” Ray v. United
States, 721 F.3d 758, 761 (6th Cir. 2013) (internal
citations and quotation marks omitted). “An evidentiary
hearing is not required, ” however, “‘if
the petitioner's allegations cannot be accepted as true
because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of
fact.” Monea v. United States, 914 F.3d 414,
422 (6th Cir. 2019) (quoting Valentine v. United
States, 488 F.3d 325, 333 (6th Cir. 2007)).
Sixth Circuit and this Court draw Mr. Braden's claims
from the beginning of his initial pro se motion.
(See Doc. No. 1 at 4-7; Doc. No. 1-1 4, 14-17.)
These sections are often conclusory or difficult to
understand, and the hundreds of pages of attachments that
follow provide little clarity. Nonetheless, the Court has
considered the entire available record and liberally
construed Mr. Braden's initial pro se motion and
subsequent briefing to the fullest practicable extent. And
for the reasons below, the Court concludes that none of the
arguments in Mr. Braden's initial pro se motion entitle
him to relief.
Court will first address Mr. Braden's underlying claims
of error, which involves consideration of some of Mr.
Braden's claims for ineffective assistance of counsel.
The Court will then turn to Mr. Braden's remaining
stand-alone ineffective-assistance claims.
Flawed Jury Instructions that Resulted in a Constructive
Braden asserts that the jury instructions and verdict form
constructively amended the second superseding indictment.
(Doc. No. 1 at 4.) His concerns focus on Count 3, possession
of firearms in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A). (Id.)
924(c)(1) “contains two separate offenses: one for
possession of a firearm ‘in furtherance of' a drug
trafficking crime, and one for using or carrying a firearm
‘during and in relation to' a drug trafficking
crime.” United States v. Hunter, 558 F.3d 495,
501-02 (6th Cir. 2009) (citing United States v.
Combs, 369 F.3d 925 (6th Cir. 2004)). The
“possession” crime and the “use”
crime have different elements and standards. Id.
(discussing Combs, 369 F.3d 925 and United
States v. Castano, 543 F.3d 826 (6th Cir. 2008)). Where
an indictment charges one of these offenses, but the ensuing
trial proceedings are not consistent with the charged
offense, it may result in an impermissible
“constructive amendment” of the indictment.
Mr. Braden seemingly contends that the indictment charged him
with the “use” crime, but the jury instructions,
verdict form, and judgment constructively amended the
indictment by convicting him of the “possession”
crime. (Doc. No. 1-2 at 86; Doc. No. 51 at 4- 5.) Mr. Braden
is mistaken-the second superseding indictment charged him
with the “possession” crime, and the ensuing
trial proceedings were consistent with this charge.
appears that Mr. Braden's argument on this point may be
based on a legitimate but harmless clerical error on the
CMECF docket sheet in Mr. Braden's criminal case. There,
in the section listing “Pending Counts” under Mr.
Braden's name, the docket sheet reflects that the first
superseding indictment charged him with the
“possession” crime, but that the second
superseding indictment charged him with “[c]arrying
firearms during and in relation to drug trafficking.”
This notation regarding the second superseding indictment on
the docket sheet is incorrect, but it has no bearing on what
happened during Mr. Braden's trial or how Count 3 is
characterized at any point in the record.
second superseding indictment specifically charged Mr. Braden
with knowingly possessing firearms in furtherance of a drug
trafficking crime. (Crim. Doc. No. 76 at 2.) The “in
furtherance of” element of the “possession”
crime requires the Government to show “that the
‘firearm was possessed to advance or promote the
commission of the underlying [drug trafficking]
offense.'” United States v. Maye, 582 F.3d
622, 630 (6th Cir. 2009) (quoting Combs, 369 F.3d at
933). The Government must also prove that “the
firearm's presence in the vicinity of the crime was
something more than mere chance or coincidence.”
Combs, 369 F.3d at 933. The Sixth Circuit has listed
a few relevant factors to use when considering “whether
the possession was ‘in furtherance of' the crime,
including: (1) whether the firearm was loaded; (2) the type
of firearm; (3) whether the weapon was stolen or legitimately
possessed; (4) the type of drug activity conducted; and (5)
the time and circumstances under which the gun was
found.” Id. (citing United States v.
Mackey, 265 F.3d 457, 462 (6th Cir. 2001)).
while instructing the jury, the Court correctly stated Mr.
Braden's charged offense-“possessing firearms in
furtherance of a drug-trafficking crime” (Crim. Doc.
No. 129 at 18)-and described the “in furtherance
of” element of this offense in language that closely
tracks the controlling Sixth Circuit precedent identified
The phrase “in furtherance of” means that the
firearm was possessed to advance or promote the crime charged
in Count 2 and that the firearm was strategically located so
that it was quickly and easily available for use. Other
factors that may be relevant to a determination of whether
the weapons were possessed in furtherance of the crime
include whether the firearms were loaded, the type of
firearms, the legality of the possession, the type of drug
activity conducted and the time and circumstances under which
the firearms were found.
(Id. at 19-20.) Additionally, the verdict form
correctly characterizes Count 3 as charging Mr. Braden with
“possessing a firearm in furtherance of a drug
trafficking crime.” (Crim. Doc. No. 106 at 2.) And the
judgment likewise refers to Count 3 as “possession of
firearms in furtherance of a drug trafficking offense.”
(Crim. Doc. No. 114 at 2.) Given the consistent
characterization of Count 3 within the record, Mr.
Braden's claim that the Court gave “flawed jury
instructions that resulted in a constructive amendment”
is without merit.
from the “constructive amendment” argument, Mr.
Braden raises some kind of challenge to the jury instructions
for Count 1. (Doc. No. 1-2 at 69.) But Mr. Gant raised a
claim that “the jury instructions on Count 1 were
improper” in the amended motion, and this Court denied
it. Braden, No. 14-6395, Doc. No. 11-2 at 2. The
Sixth Circuit found that “the challenged jury
instructions were a correct statement of the law in this
circuit, ” and denied a COA on this claim. Id.
at 4 (citing United States v. Henry, 429 F.3d 603,
620 (6th Cir. 2005)). Accordingly, to the extent that Mr.
Braden's initial pro se motion asserts this claim as
well, it is without merit.
Illegal Search and Seizure
Mr. Braden asserts that he was subject to “illegal
search and seizure” by Metropolitan Nashville Police
Department (“MNPD”) Officers “Corey Alexis
West and Neil Patrick Wolfe.” (Doc. No. 1 at 5.)
Indeed, Mr. Braden's primary focus throughout his initial
pro se motion and subsequent briefing is on the search of his
residence by police officers responding to a 911 call. The
Government argues that Mr. Braden's “illegal search
and seizure” claim should be denied because it attempts
to relitigate issues already decided by this Court and the
Sixth Circuit. (Doc. No. 21 at 11; Doc. No. 116 at 12.) The
Court agrees. Further, as explained in more detail below, any
new search-and-seizure claims are also without merit because
they are procedurally defaulted without cause.
Previously Raised on Direct Appeal
Braden asserts that officers responding to a 911 call
illegally searched his residence and planted evidence in
plain view, (Doc. No. 1-1 at 29, 38; Doc. No. 1-4 at 30; Doc.
No. 1-5 at 133-34), and that the officers refused Mr.
Braden's request to leave the residence (Doc. No. 1-1 at
38; Doc. No. 1-4 at 30). These exact arguments were addressed
in Mr. Braden's criminal case.
December 2008, Mr. Braden filed a motion to suppress the
evidence obtained from the search of his residence. (Crim.
Doc. No. 33.) This motion incorporated a pro se motion
drafted by Mr. Braden, (Crim. Doc. No. 33-1), and a brief in
support drafted by then-counsel Mr. Gonzalez (Crim. Doc. No.
34). According to the pro se motion, Officers Wolfe and Park
impermissibly remained in Mr. Braden's residence after he
asked them to leave, and then they conducted an illegal
search. (Crim. Doc. No. 33-1 at 2-3.) After the ambulance
arrived, Mr. Braden argued, he again requested that Wolfe and
Park leave the residence so that he could lock his door.
(Id. at 3.) According to Mr. Braden, the officers
refused and “used the warrantless and illegal
search” to obtain a search warrant. (Id. at
4.) Mr. Braden maintained that there was no incriminating
evidence in plain view, and that any evidence used to justify
the search warrant was the result of an illegal search.
(Id. at 4-5.) Mr. Gonzalez's supporting brief
put this argument plainly: “After the unlawful search
uncovered illegal substances, officers then placed a bag of
crack cocaine on top of the dresser drawer and claimed that
they had seen it in ‘plain view.' On this basis,
they sought and obtained a search warrant.” (Crim. Doc.
No. 34 at 4.)
after Mr. Gonzalez filed the motion to suppress, Mr. Braden
submitted a letter stating that he intended to represent
himself going forward, (Crim. Doc. No. 38), and Mr. Gonzalez
filed a motion to withdraw on that basis (Crim. Doc. No. 39).
Mr. Gonzalez, however, requested to be assigned as standby
counsel if the Court allowed him to withdraw, (id.
at 4), and the Court granted that request (Crim. Doc. No.
January 30, 2009, the Court held a hearing on the motion to
suppress at which Mr. Braden represented himself. (Crim. Doc.
No. 71 (transcript).) At the hearing, the Court heard
testimony from MNPD personnel Neil Wolfe, Sung Jun Park,
Joseph Towers, Kurt Knapp, and Cory West. (Id. at 8,
69, 125, 158, 175.) Paramedic John Kerr and Mr. Braden also
testified. (Id. at 91, 222.) The Sixth Circuit
summarized the facts underlying the search as follows:
Braden and his former girlfriend, Keyiona Oatis,
called 911 to report that she had stabbed him with a knife
and to request that the police and an ambulance come to his
residence. Officer Sung Jun Park, Officer Neil Wolfe and an
officer in training initially responded to the dispatch. When
the officers approached the front door of Braden's
residence, which was open, Officer Park announced their
presence and asked if anyone was inside. Braden responded
from the basement, “I'm in here. I'm
downstairs.” The officers went directly to the
basement, where Braden was sitting on a bed. Officer Park
attended to Braden's stab wounds while Officer Wolfe
assessed the crime scene and looked for the weapon used in
the stabbing. Braden directed Officer Wolfe to the weapon, a
knife, which was on top of a dresser facing the bed. Officer
Wolfe observed in plain view a small amount of suspected
powder cocaine and a .223 caliber round of ammunition on top
of the dresser, as well as a baggie containing suspected
crack cocaine in a partially open dresser drawer. At some
point after Officer Wolfe observed the ammunition and
suspected drugs, Braden asked the police officers to leave
While paramedics were in the process of treating Braden and
transporting him to the hospital, Officer Wolfe contacted his
supervisor and advised that they would need to obtain a
search warrant for the residence based on the items that he
had seen in plain view. The police officers secured the crime
scene, “freezing” it for a search warrant, and
made sure that all items were left in place and not
manipulated. Officer Cory West subsequently arrived at the
residence and went to the basement, where Officer Wolfe
pointed out the items that he had observed in plain view.
Officer West left to obtain a search warrant for the
residence based on the police officers' plain-view
observations and returned to execute the warrant. The search
of the residence revealed three firearms and crack and powder
(Crim. Doc. No. 130 at 2-3.)
conclusion of proof, the Court found that “everybody
testif[ied] that there was plain-view cocaine there with the
exception of the defendant.” (Crim. Doc. No. 71 at
250.) And the Court found that Mr. Braden's credibility
had been “destroyed” by the recording of the 911
call, (id.), which is discussed in greater detail
below. The Court, accordingly, concluded that “[t]he
plain-view exception clearly applies in this case, ”
and denied the motion to suppress. (Id.)
Mr. Braden's issues for review on direct appeal was
“whether the district court judge should have granted
[his] Motion to Suppress the evidence seized from his
home.” (Doc. No. 21-1 at 5.) There, he essentially
presented the same argument as at the hearing on his
suppression motion-that the officers should have left his
residence when he asked them ...