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Braden v. United States

United States District Court, M.D. Tennessee, Nashville Division

August 14, 2019

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

          MEMORANDUM OPINION

          WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE

         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 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.)

         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 40 years' 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 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 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 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.

         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), 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.)

         Mr. 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).

         II. Filings and Claims Currently Before the Court

         A. Filings Before the Court

         As 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.

         Due to 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).

         A few 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 8.)

         A few 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 briefing.

         B. Claims Before the Court

         The 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.

         III. 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)).

         “When 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)).

         IV. Analysis

         The 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.

         The 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.

         A. Flawed Jury Instructions that Resulted in a Constructive Amendment

         Mr. 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.)

         Section 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. Id.

         Here, 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.

         It 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.

         The 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)).

         Here, 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 above:

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.

         Aside 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.

         B. Illegal Search and Seizure

         Next, 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.

         1. Previously Raised on Direct Appeal

         Mr. 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.

         In 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.)

         Soon 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. 43).

         On 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, [4] 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 the residence.
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 cocaine.

(Crim. Doc. No. 130 at 2-3.)

         At the 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.)

         One of 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 ...


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