# Brown v. United States

> District Court, C.D. Illinois · September 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10136570

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** September 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10136570

## How later opinions describe it (automated extraction)

- finding that a “bounty”—here, a payment to a cooperator for helping law enforcement catch the defendants—was different than a witness fee

## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION

JERRY BROWN, )
)
Petitioner, )
)
v. ) Case No. 4:17-cv-04275-SLD
)
UNITED STATES OF AMERICA, )
)
Respondent. )

ORDER
Before the Court are Petitioner Jerry Brown’s Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody, Pursuant to Title 28, United States Code, § 2255
(“2255 Motion”), ECF No. 1, and Motion to Amend, ECF No. 13. For the reasons that follow,
both motions are DENIED.
BACKGROUND1
A criminal complaint filed on March 26, 2012 alleged that Brown and Frederick Coleman
had been conspiring to distribute crack cocaine in Henry County, Illinois in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A) and § 846 since December 2010. Compl., Cr. ECF No. 1. On
April 18, 2012, the grand jury returned an indictment charging Brown, Coleman, Darrion Capers,
Nicholas Clark, and James Tatum with conspiracy to distribute at least 280 grams of crack
cocaine in violation of 21 U.S.C. § 841(a) and (b)(1)(A). Indictment 1–2, Cr. ECF No. 9. A
superseding indictment adding another co-conspirator was filed on August 22, 2012.
Superseding Indictment, Cr. ECF No. 65.

1 References to Brown’s underlying criminal case, United States v. Brown, 4:12-cr-40031-SLD-JEH-2, take the
form: Cr. ___.
After Brown’s retained counsel withdrew, the Court appointed Assistant Federal Public
Defender George Taseff to represent Brown. See Cr. June 14, 2012 Text Order. Brown,
Coleman, Capers, and Clark (collectively, “Defendants” or “Co-Defendants”) went to trial. See,
e.g., Cr. May 13, 2013 Min. Entry. They were all found guilty of conspiracy to distribute and

possess at least 280 grams of crack cocaine. See generally Verdicts, Cr. ECF No. 195. Brown
was sentenced to life imprisonment, Judgment 1–2, Cr. ECF No. 249, because he had at least two
prior drug felonies, see Revised Presentence Investigation Report ¶¶ 4, 104, Cr. ECF No. 223;
Sentencing Hr’g Tr. 51:9–11, Cr. ECF No. 288; 21 U.S.C. § 841(b)(1)(A) (effective Aug. 3,
2010 to Dec. 20, 2018) (providing that an individual convicted under § 841(b)(1)(A) “shall be
sentenced to a mandatory term of life imprisonment” if he commits the crime after “two or more
prior convictions for a felony drug offense have become final”).
Brown appealed. Not. Appeal, Cr. ECF No. 255. He was represented by Assistant
Federal Public Defender Johanna Christiansen. Taseff Aff. ¶ 4, ECF No. 8-1. Brown challenged
some of the Court’s evidentiary rulings from trial, argued that he did not receive due process

because of the cumulative effect of trial errors, and argued that his life sentence was improper
because “a jury did not find the existence of [his] prior felonies.” United States v. Brown, 822
F.3d 966, 971, 975, 976 (7th Cir. 2016). The Seventh Circuit rejected those arguments and
affirmed both his conviction and sentence. Id. at 971–76, 978. The court said the following
about the evidence presented against Defendants at trial:
[T]he evidence of their guilt was overwhelming. It included testimony from more
than a dozen witnesses who purchased crack cocaine or worked with the
defendants and knew the day-to-day operations of the conspiracy, eight controlled
buys monitored by law enforcement, and phone records and recorded jail calls in
which members of the conspiracy plotted to cover up and maintain the conspiracy
after their arrest.
Id. at 973. Brown filed a petition for a writ of certiorari from the United States Supreme
Court, which was denied on October 3, 2016. Brown v. United States, 137 S. Ct. 248
(2016) (mem.).
Brown filed his 2255 Motion on September 26, 2017. 2255 Mot. 11 (declaring that he
put his motion in the prison mailing system on September 26, 2017);2 see Rule 3(d), Rules

Governing § 2255 Proceedings (“A paper filed by an inmate confined in an institution is timely if
deposited in the institution’s internal mailing system on or before the last day for filing.”). He
claims that he received constitutionally ineffective assistance of counsel from both his trial
counsel and his appellate counsel. See 2255 Mot. 4–7. In a supplemental filing, he identified
numerous specific grounds of alleged ineffective assistance of counsel by trial and appellate
counsel. See Statement Grounds Supp. 6–29, ECF No. 4.3 Brown then filed a motion to amend
his 2255 Motion to include a claim pursuant to Amendment 503 to the United States Sentencing
Guidelines, see United States Sentencing Guidelines Manual App. C, Vol. I, § 503. Mot. Amend
1; Decl. Supp. Mot. Amend 2, ECF No. 13-2.

Because of the diffuse nature of Brown’s allegations, the Court provides further factual
and procedural background along with its legal analysis of each asserted ground of ineffective
assistance of counsel.

2 The internal pagination of Brown’s 2255 Motion is inconsistent—there are two page 5s and then it skips from page
9 to page 11—so for clarity the Court uses the CM/ECF-generated page numbers.
3 Some of the grounds Brown initially asserted were withdrawn in his reply, see Reply 15, 21, 22, 26, ECF No. 11–
11-1 at 6, so the Court will not address them.
DISCUSSION
I. 2255 Motion
a. Legal Standards
A prisoner in federal custody may move the court that imposed his sentence to vacate, set

aside, or correct it. 28 U.S.C. § 2255(a). “[R]elief under § 2255 is an extraordinary remedy
because it asks the district court essentially to reopen the criminal process to a person who
already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521
(7th Cir. 2007). Accordingly, such relief “is available only when the ‘sentence was imposed in
violation of the Constitution or laws of the United States,’ the court lacked jurisdiction, the
sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral
attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C.
§ 2255(a)).
The Sixth Amendment guarantees criminal defendants the right to the effective assistance
of counsel. U.S. Const. amend. VI. Claims of ineffective assistance of counsel are subject to the

two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). This test requires a
petitioner to show that his counsel’s performance “fell below an objective standard of
reasonableness” and that he suffered prejudice as a result. Id. at 688, 692. The court applies “a
strong presumption that decisions by counsel fall within a wide range of reasonable trial
strategies.” United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotation marks
omitted). The petitioner “must rebut this presumption by proving that his attorney’s
representation was unreasonable under prevailing professional norms and that the challenged
action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To
demonstrate prejudice, the petitioner “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
b. Analysis
The Court will address Brown’s grounds of ineffective assistance of counsel separately

and then cumulatively. See Myers v. Neal, 975 F.3d 611, 623 (7th Cir. 2020) (“Where, as here,
the record shows more than one instance of deficient performance, the Sixth Amendment
requires that we approach the prejudice inquiry by focusing on the cumulative effect of trial
counsel’s shortcomings.”); Washington v. Smith, 219 F.3d 620, 634−35 (7th Cir. 2000)
(“Evaluated individually, [counsel’s] errors may or may not have been prejudicial to [the
petitioner], but we must assess the totality of the omitted evidence under Strickland rather than
the individual errors.” (quotation marks omitted)).
i. Trial Counsel
1. Waived Presence and Restraints
Brown’s first two arguments are intertwined, so the Court will address them together.

Brown and his Co-Defendants were required to wear leg restraints throughout most of the trial.
Brown argues first that counsel was ineffective for waiving Brown’s presence during the
hearings in which the restraints were discussed. Statement Grounds Supp. 6. He argues second
that counsel was ineffective for failing to “insist[] that the [C]ourt conduct a colloquy with
[Brown] on th[e] issue,” id. at 6–7, and for failing to make additional arguments against the use
of leg restraints, see id. at 8–11.4 The Government responds that Brown’s presence was not
required during the chambers conferences where this issue was discussed. See Resp. 21–23,

4 The title of Brown’s claim suggests he is only objecting to counsel’s failure to ensure a colloquy occurred. See
Statement Grounds Supp. 6. But he goes on to argue that counsel should have requested that the Court consider
additional factors. See id. at 10–11. The Court construes this as a claim that counsel should have made additional
arguments beyond simply objecting to the restraints.
ECF No. 8. It also argues that “at no time throughout the conferences regarding whether Brown
was to wear leg restraints was Brown’s counsel performing ineffectively,” noting that counsel
did move for removal of the restraints, but lost. Id. at 25. Further, the Government argues that
Brown “fails to show any prejudice whatsoever in regard to the use of leg restraints during trial”

because “he fails to present any evidence that the jury was even aware of the use of such
restraints.” Id. at 25–26.
Leg restraints were first mentioned in a chambers conference held outside the presence of
Defendants before jury selection began. See Trial Tr. Volume 1 3:2–3, 4:17–5:10, Cr. ECF No.
336. The Court inquired whether any counsel wanted their clients present; a Co-Defendant’s
counsel said that “so long as” they would only discuss “preliminary matters, it[ was] okay to
proceed” without his client and Brown’s counsel agreed. Id. at 3:17–23. The Court noted that
“[a]t the request of” the United States Marshals (“USM”), skirting was put around Defendants’
counsel table “in the event” Defendants would be restrained at some point during trial. Id. at
4:19–24. The Court noted that it would leave within the discretion of the USM “what they need

to do as far as security.” Id. at 4:24–5:1.
The next time leg restraints were mentioned was during jury selection when Defendants’
attorneys noticed that Defendants had leg restraints on. See id. at 5:25–6:3. In the presence of
Defendants, id. at 5:12–13, their attorneys moved to remove the restraints, id. at 6:5–7:1; id. at
6:21–24. The Court noted that it had “taken steps to reduce the possibility that any prospective
jurors or jurors in th[e] case w[ould] be able to []view the manner in which . . . [D]efendants
[we]re restrained,” such as skirting counsel table. Id. at 8:10–14. The Court then called Deputy
Marshal Hollenback into the hearing. Id. at 9:6–12. Hollenback stated that it was “the
preference of the” USM that Defendants wear leg restraints. Id. at 11:5–6. The Court directed
that the restraints be removed for jury selection and indicated it would reconsider that ruling for
the remainder of the trial later. Id. at 11:9–13.
The next day, the Court brought up the restraint issue again, but the Government
indicated that the USM requested that the issue be discussed “outside the presence of the

[D]efendants because there may be some security issues that would come in . . . to the public.”
Trial Tr. Volume 2 40:14–24, Cr. ECF No. 337. The Court decided to address the issue at the
next morning’s chambers conference, id. at 40:25–41:2, but specified that it would make an
appropriate record with Defendants in the courtroom if necessary, id. at 41:2–5.
Thus, the next day, outside the presence of Defendants, Trial Tr. Volume 3 46:1–3, Cr.
ECF No. 338, the Court revisited the issue of physical restraints, id. at 51:5–7. Hollenback
indicated that his staff had brought to his attention that Defendants had been “looking to see if”
the USM had their “weapons on and where they[ were being] carried.” Id. at 51:25–52:4. He
noticed personally that Defendants had been looking to see what was beyond doors. Id. at 52:4–
6. He also indicated that Defendants allegedly had violent pasts, that they had incidents in the

cell block with threats toward trial witnesses, and that because of the seriousness of the charges
and penalties, the USM “would feel much more comfortable with the restraints on.” Id. at 52:7–
14. When asked to elaborate about the alleged threats, Hollenback stated that Brown said to a
cooperator who had negotiated a plea agreement, “I’m gonna whip your ass” and then to
Hollenback, “You better keep me away from him.” Id. at 52:19–53:10.
The Court determined that leg restraints would be used during the remainder of the trial.
Id. at 61:21–25. It based this decision on the seriousness of the charges against Defendants and
the potential penalties they faced, Defendants’ substantial criminal history, an increased need to
protect the physical security of the courtroom in light of the fact that there were four Defendants
at counsel table, and prior evidence of threats made by Defendants against cooperating witnesses
(including evidence of threats, beatings, and comments about snitches and cooperators that the
Court came across when ruling on pretrial motions). Id. at 59:20–61:10. It acknowledged
Defendants’ right to due process and their presumption of innocence but found that in light of the

above-identified factors, there was a justified state interest in having Defendants restrained. Id.
at 61:18–25. However, the Court also noted that it was imperative that the restraints be used in
an unobtrusive fashion so the USM would need to ensure that Defendants were seated prior to
the jury entering the courtroom, keep the skirting on the tables, and keep the windows covered.
Id. at 62:1–25. The Court also asked that the restraints be taped to avoid noise, id. at 72:2–4, and
arranged for skirting to be added to the Government’s counsel table as well to avoid any
inference from the skirting, id. at 72:21–73:23. Moreover, the Court noted that if Defendants
testified, their restraints would be removed, id. at 63:6–15, and made arrangements for sidebars
where Defendants’ presence was necessary to occur outside the presence of the jury, see id. at
67:19–68:2. After Defendants reentered the courtroom, but prior to the jury’s entry, the Court

explained to them that leg restraints would be used for the remainder of trial and the basis for
that decision. Id. at 69:23–71:24.
First, the Court will address whether counsel was ineffective for waiving Brown’s
presence at the hearings to discuss restraints. “[A] criminal defendant’s right to be present at
trial is constitutional bedrock.” United States v. Benabe, 654 F.3d 753, 768 (7th Cir. 2011). The
Sixth Amendment provides a right to be present at trial and the Due Process clauses of the Fifth
and Fourteenth Amendments provide a right to be present “to the extent that a fair and just
hearing would be thwarted by [the defendant’s] absence.” Id. (quotation marks omitted).
Federal Rule of Criminal Procedure 43(a)(2) further provides that a “defendant must be present
at every trial stage, including jury empanelment and the return of the verdict.” But “[a]
defendant need not be present” where “[t]he proceeding involves only a conference or hearing on
a question of law.” Id. 43(b)(3).
Brown’s counsel declares that it “was [his] belief that . . . Brown’s physical presence in

court during the Court’s consideration of this matter and issues relating to courtroom security
was not required under Rule 43(b)(3).” Taseff Aff. ¶ 9. Likewise, the Government appears to
argue that these issues were only discussed at conferences that Brown had no right to attend. See
Resp. 21–23. Brown’s presence was certainly not required at the chambers conference held
before jury selection began—it was to discuss preliminary matters and no decisions were made
on restraints—so counsel was not ineffective for waiving Brown’s presence then. The Court’s
final decision on the matter was also made outside the presence of Defendants. Neither the
Government nor Brown provide the Court with caselaw that explains what constitutes a
“conference” or that discusses whether Rule 43 or the Constitution require a defendant’s
presence at a hearing to decide whether restraints will be used. But regardless of whether Brown

had a right to be present at that hearing that counsel should have asserted, Brown shows no
prejudice. He does not explain how his presence during the discussions of whether to restrain
Defendants would have changed the Court’s decision.
Next, the Court addresses Brown’s arguments regarding the decision to require him to
wear leg restraints. “A defendant in a criminal case has the right to appear before a jury free
from shackles or other physical restraints.” United States v. Van Sach, 458 F.3d 694, 699 (7th
Cir. 2006). But that right is “not absolute.” Id. (citing Holbrook v. Flynn, 475 U.S. 560, 567–68
(1986)). “The right to be free from shackles at trial ‘may be overcome in a particular instance by
essential state interests such as physical security, escape prevention, or courtroom decorum.’”
Id. (quoting Deck v. Missouri, 544 U.S. 622, 629 (2005)); Deck, 544 U.S. at 629 (“[T]he Fifth
and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a
trial court determination, in the exercise of its discretion, that they are justified by a state interest
specific to a particular trial.”).

Despite Brown’s contention that the Court needed to conduct a colloquy with him,
Statement Grounds Supp. 7, there are no particular procedures the Court must follow when
determining whether to exercise its discretion to restrain a defendant.5 See Deck, 544 U.S. at 629
(noting that “[l]ower courts have disagreed about the specific procedural steps a trial court must
take prior to shackling” but declining to outline such steps). Thus, certainly Brown’s counsel did
not perform deficiently by failing to ensure a colloquy took place. And contrary to Brown’s
contention that, for example, the Court had to consider twelve factors but “only considered one”
and that it “rel[ied] blindly on the opinion of the” USM in determining that restraints were
warranted, see Statement Grounds Supp. 10–11, the Court considered numerous factors in
making its decision. Ultimately, it relied on concerns specific to this case in determining leg

restraints were necessary: there were multiple Defendants in the courtroom, which posed a
heightened security risk; USM had noticed concerning behavior from Defendants; Defendants
were facing severe penalties and had significant criminal histories; and there was evidence of
past threats against witnesses by Defendants. The arguments Brown wishes his counsel would
have made were already considered by the Court, so they would not have changed the Court’s
decision.
Moreover, Brown has not shown that counsel’s alleged errors prejudiced him. There is
no evidence that the restraints were visible to the jury—and the Court took extensive precautions

5 Brown appears to be extensively relying on a case from the Supreme Court of Wyoming. Compare Statement
Grounds Supp. 8–11, with Asch v. State, 62 P.3d 945, 961–65 (Wyo. 2003). This case is not binding on the Court.
so that they would not be—so there is no reason to think that if he had not been required to wear
leg restraints, the jury would have found him not guilty.6 See Stephenson v. Wilson, 619 F.3d
664, 671 (7th Cir. 2010) (reaffirming that a petitioner claiming that “his counsel was ineffective
in failing to challenge” the decision to physically restrain the petitioner during trial “must show

that he was prejudiced by counsel’s error,” meaning that counsel’s “subpar performance harmed”
him);7 cf. United States v. Cooper, 591 F.3d 582, 588–89 (7th Cir. 2010) (finding no plain error
in a district court’s decision to shackle the defendant because there was nothing in the record to
suggest “that it affected the outcome of the proceedings,” noting that the leg shackles were not
visible “because [the defendant] was sitting at a skirted table” and that “the government’s table
was similarly skirted”).
2. Right to a Public Trial
Brown argues that counsel was ineffective for “fail[ing] to object to the [C]ourt’s
statements which affected [Brown’s] Sixth Amendment right to a public trial.” Statement
Grounds Supp. 11–12. Specifically, he argues that counsel “stood idly when the [C]ourt made

statements which had the potential of closing the courtroom to spectators.” Id. at 12. He points
to the following statements the Court made at trial: “[W]e’ve blocked out the windows into the
courtroom so nobody can see in here and we have complete control over who enters and who
exits,” Trial Tr. Volume 3 71:12–15; and “I don’t see anybody in the courtroom here today but --

6 Moreover, although Brown briefly suggests that being restrained interfered with his ability to confer with counsel
and participate in the trial, see Statement Grounds Supp. 9, leg restraints would not have impacted his ability to
confer with counsel who was seated right next to him and the Court made accommodations for sidebars where
Defendants’ presence was necessary and for the removal of leg restraints outside the presence of the jury if Brown
chose to testify.
7 If the decision to restrain a defendant is challenged on direct appeal, the government has “to prove beyond a
reasonable doubt that the [restraint] [did] not influence[] the verdict.” Stephenson, 619 F.3d at 671. This differs
from the ineffective assistance of counsel standard, which places the burden on the defendant to show prejudice in
the form of an effect on the jury’s verdict. Id. (“[O]n collateral review of a state court conviction, federal courts . . .
only grant[] a writ when an error had a [prejudicial] effect or influence in determining the jury’s verdict.” (quotation
marks and emphasis omitted)).
I mean this afternoon,” Trial Tr. Volume 6 1158:20–22, Cr. ECF No. 341. The Government
responds that “at no time during the trial was the courtroom closed to the public.” Resp. 26.
The Sixth Amendment provides defendants with a right to a public trial. U.S. Const.
amend. VI. This right is “a safeguard against any attempt to employ our courts as instruments of

persecution.” In re Oliver, 333 U.S. 257, 270 (1948). Brown’s own argument—that the Court’s
statements had the potential to close the courtroom, see Statement Grounds Supp. 12—concedes
that the courtroom was not actually closed to the public. No Sixth Amendment violation
occurred, and counsel had no duty to object.
Even assuming an attorney would have an obligation to object to potential closures of the
courtroom, none happened here. The Court made the first statement Brown refers to—regarding
control over who could exit and enter the courtroom—when discussing the safeguards put in
place to prevent jurors from seeing Defendants in leg restraints. See Trial Tr. Volume 3 71:4–15.
The Court was noting that it controlled when the jury and Defendants entered the courtroom; it
would always arrange for Defendants to enter first and be seated before the jury came in. Id.
The Court made the second statement—regarding no one being in the courtroom8—after

a lunch break, but before the jury came back in. See Trial Tr. Volume 6 1140:23–24, 1141:10–
12. The Court was considering a legal issue regarding a witness’s testimony. See id. at
1141:13–16. Nothing in the record supports that the Court barred spectators from entering to
listen to that discussion.

8 Presumably this is the statement Brown is referring to. He cites the trial transcript at page 1158 line 20 which
reads in full: “Okay. One other matter. And I . . . .” Trial Tr. Volume 6 1158:20. The Court finishes, “don’t see
anybody in the courtroom here today -- I mean this afternoon,” in the next two lines. Id. at 1158:21–22. Shortly
thereafter, the Court asked counsel to let spectators know not to mouth words to Defendants. Id. at 1159:1–14.
Even if Brown is referring to this later part of the transcript, the Court’s statement did not have the potential to close
the courtroom. The Court simply asked counsel to, if they knew the spectators, let them know that it was
inappropriate to mouth words to Defendants. Id. It never indicated it would not allow spectators into the courtroom.
Any objection that either of these statements had the potential of violating Brown’s Sixth
Amendment right to a public trial would have been frivolous. Counsel has no duty to make
frivolous arguments. See Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005) (“Because a
defendant’s lawyer has an obligation to be truthful and forthright with the court, he has no duty

to make a frivolous argument . . . .” (quotation marks omitted)); United States v. Rezin, 322 F.3d
443, 446 (7th Cir. 2003) (“A defendant’s lawyer has, it is certainly true, no duty to make a
frivolous argument; and there is a tactical reason not to make weak arguments (and a fortiori
frivolous ones, which anyway are futile): they may distract the court from the strong arguments .
. . .” (citation omitted)), overruled on other grounds by Lockhart v. United States, 577 U.S. 347
(2016). Therefore, Brown’s counsel did not perform deficiently.
3. Plea Agreement
Brown argues that counsel was ineffective for refusing to negotiate a plea agreement and
convincing Brown to go to trial. Statement Grounds Supp. 12–14. He alleges that he “notified
counsel of his desire to accept a guilty plea to reduced charges . . . with withdrawal of the

[G]overnment’s sentencing enhancement information[].” Id. at 12. He alleges that though he
directed counsel “to explore a potential plea agreement,” counsel refused to do so and told
Brown that he would not be found guilty. Id. at 13. The Government responds that Brown’s
claim is meritless, citing to an affidavit from his trial counsel, and, alternatively, that Brown has
failed to show prejudice because he cannot show that it “would have offered him a plea
agreement had his counsel performed differently.” See Resp. 27–29.
Counsel submitted an affidavit indicating that, after he was appointed, he consulted with
Brown’s former attorney, Elliot Zinger. Taseff Aff. ¶ 15. Zinger advised him that the only plea
offer the Government would make was to mandatory life imprisonment under a cooperation plea
agreement. Id. Counsel relayed this information to Brown and Brown acknowledged that he
was aware of the offer and advised that he wanted to go to trial. Id. ¶ 16. Counsel told Brown to
advise him if he ever changed his mind. Id. Counsel declares that at no time from the start of his
representation of Brown until commencement of trial did Brown indicate that he wanted to

discuss a plea agreement. Id. ¶ 17.
Brown clarifies in his reply that he “directed trial counsel to discuss a potential plea
agreement . . . within days of the trial’s commencement after the United States filed its § 851
notice” and specifies that he directed counsel that any plea agreement “not include a cooperation
agreement.” Reply 11–12, ECF No. 11–11-1 at 6.9 It is not clear whether Brown means he
directed counsel to negotiate a plea agreement before or after the trial started. In any case,
Brown declared under penalty of perjury that the allegations and statements included in his
Statement of Grounds in Support of his 2255 Motion and in his reply are true and correct. See
Brown Statement Grounds Supp. Decl., ECF No. 4-1 at 14; Brown Reply Decl., ECF No. 11-1 at
6. Brown has thus sufficiently alleged facts which, if proven, would show he asked his attorney

to pursue plea negotiations.
Even if failure to pursue plea negotiations despite Brown’s request could constitute
deficient performance, however, Brown has not demonstrated prejudice. “In the context of
pleas[,] a defendant must show the outcome of the plea process would have been different with
competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012). And where, as here, the alleged
prejudice is going to trial
a defendant must show that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been presented to the court .
. . , that the court would have accepted its terms, and that the conviction or

9 For some reason, two copies of the reply were filed: first in ECF attachment 11 and the first six pages of ECF
attachment 11-1; then again in the remaining pages of ECF attachment 11-1 and ECF attachment 11-2.
sentence, or both, under the offer’s terms would have been less severe than under
the judgment and sentence that in fact were imposed.

Id. at 164. Brown cannot show that the Government would have offered to allow him to plead
guilty under terms which would have resulted in a sentence of less than life imprisonment and
which he would have accepted. The only information in the record regarding plea offers is that
the Government would only offer to allow Brown to plead guilty to mandatory life imprisonment
under a cooperation plea agreement, Taseff Aff. ¶ 15, which would allow the Government to
move for a sentence below the mandatory minimum. Brown denied that offer, id. ¶ 16, and
counsel declares that Brown “advised [him] that he would never become a ‘snitch’ and cooperate
with the feds,” id. ¶ 16. And Brown indicates that he directed counsel not to pursue a
cooperation plea agreement. See Reply 12. The only other plea agreements that would allow
Brown to be sentenced to less than life imprisonment would be a plea to reduced charges or a
plea that provided for withdrawal of the § 851 notice. But Brown submits no evidence from
which the Court could find that the Government would have offered him these agreements, so he
cannot show prejudice.
4. Shawn Swearingen
Brown argues that counsel was ineffective for “fail[ing] to object when the [C]ourt
interfered with [his] constitutional right to confront and cross-examine [G]overnment witness
Shawn Swearingen.” Statement Grounds Supp. 15. He acknowledges that “counsel initially

requested permission to question . . . Swearingen about an involuntary manslaughter charge he
received during the late ’80s” and that the Court rejected the request. Id. He argues that
“[c]ounsel’s representation was deficient because he neglected to object to preserve this issue for
appellate purposes.” Id. The Government responds that counsel “cannot be deemed ineffective
for making an argument that the Court rejected.” Resp. 30. This elides Brown’s main point
which appears to be that counsel should have objected to the Court’s ruling to preserve the issue
for appeal. See Statement Grounds Supp. 15; Reply 13.
The Government filed a motion in limine to preclude Defendants from impeaching
Swearingen based on an alleged murder charge. Mot. Limine 2–3, Cr. ECF No. 182. The Court

addressed the motion during the trial. Trial Tr. Volume 5 701:1–707:3, Cr. ECF No. 340.
Swearingen had been convicted of involuntary manslaughter arising out of a car accident in the
1980s where he was driving under the influence. See id. at 701:1–16. Brown’s counsel argued
that Swearingen’s credibility was central to the case because he “claim[ed] he was beaten by
[Defendants] . . . . in response to his not accounting for various drug profits” so the Court should
exercise its discretion to allow impeachment of him. Trial Tr. Volume 5 703:11–18. But the
Court granted the Government’s “motion in limine as it relate[d] to the late ’80s conviction for
involuntary manslaughter.” Id. at 706:12–14. It noted that it was beyond the ten-year time
period set by Federal Rule of Evidence 609(b)10 and was “arguably a juvenile conviction” and
concluded that there was “nothing about the nature of that conviction or the circumstances that . .

. outweigh[ed] its prejudicial effect or add[ed] really any probative value as to impeachment.”
Id. at 706:17–707:3.
“To preserve an issue for appeal, an appellant must make a ‘timely and specific
objection’ at trial in order to notify the court and the opposing party of the potential error and the
ground for objection.” United States v. Burns, 843 F.3d 679, 685 (7th Cir. 2016) (quoting United
States v. Ousley, 698 F.3d 972, 975 (7th Cir. 2012)). By opposing the Government’s motion in
limine at trial and making a specific argument for admissibility of Swearingen’s involuntary
manslaughter conviction, Brown’s counsel preserved for the issue for appeal. Brown’s claim

10 Though the Court said Federal Rule of 610(b), see Trial Tr. Volume 5 706:17, it meant Rule 609(b).
that counsel was ineffective for failing to preserve the issue for appeal, therefore, must fail: he
cannot show deficient performance.
5. Perjured Testimony
Brown argues that counsel was ineffective because he “did not object when the

[G]overnment intentionally caused its witnesses to provide untrue and prejudicial testimony
which [G]overnment counsel knew to be false.” Statement Grounds Supp. 16. Specifically,
Brown argues that Dorian Thompson, Charmane Perkins,11 and John Hart lied during their
testimony. Id. & nn. 10–12 (citing Trial Tr. Volume 3 183:18, 237:2, and 295:9 as to Thompson,
citing Trial Tr. Volume 3 311:6, 328:4, and 335:7 as to Perkins, and Trial Tr. Volume 5 952:20
and 1007:10 as to Hart). He also argues that at sentencing the Court “indicated its realization
that some of the [G]overnment’s witnesses had committed perjury.” Id. The Government
responds that the examples Brown cites “are merely instances of questions and objections made
by counsel” and “there is no evidence of perjured testimony given by any of these witnesses,
other than Brown’s unsupported allegations.” Resp. 31. It clarifies that, at sentencing, the Court

merely said, “Not every witness was credible, but the majority were, and certainly sufficient to
support the offense conduct . . . .” Id. (alteration omitted) (quoting Sentencing Hr’g Tr. 234:20–
23).
Perjured testimony is false testimony. See Ashburn v. Korte, 761 F.3d 741, 757 (7th Cir.
2014). “A prosecutor’s knowing use of false testimony violates a defendant’s right to due
process.” Id. “Mere inconsistencies in testimony by government witnesses[, however,] do not
establish the government’s knowing use of false testimony.” United States v. Verser, 916 F.2d
1268, 1271 (7th Cir. 1990).

11 Charmane Perkins’s married name is Charmane Roddy, Trial Tr. Volume 3 304:1–2, but she was primarily
referred to as Charmane Perkins at trial, so the Court uses that name here too.
Brown’s counsel did argue that one of the identified witnesses perjured himself. Brown
points to a portion of the trial transcript where all of Defendants’ attorneys moved to strike
Hart’s testimony. See Trial Tr. Volume 6 1007:10–1009:13, 1010:14–19. Hart testified that he
received no benefit from becoming a confidential source, see Trial Tr. Volume 5 946:19–21, and

that when he decided to become a confidential source, he was not already at the Kewanee Police
Department because he had been arrested, id. at 945:24–946:3. But the Government had
provided information to the defense that Hart had been “caught with a crack pipe during a traffic
stop and agreed to cooperate immediately.” Trial Tr. Volume 6 1008:12–13. Defense counsel
argued that Hart had perjured himself because he was arrested and he did receive a benefit for his
cooperation—not being charged based on the traffic stop—and the Government failed to correct
Hart’s testimony, as was its obligation; accordingly, they moved to strike Hart’s testimony. See
id. at 1008:18–1009:13. The Government responded that Hart’s testimony was not false because
he testified that there were many reasons he decided to cooperate and that an arrest was one of
them. Id. at 1010:22–1011:1; see also Trial Tr. Volume 5 945:5–8 (A: “There was a multitude of

reasons why I went [to the police station to sign a confidential source agreement]. Q: Was your
arrest one of them? A: Along with an arrest at, at some point.”). The Government also pointed
out that defense counsel could have impeached Hart with the information. Trial Tr. Volume 6
1011:2–10. The Court found that Hart had not perjured himself but rather had merely given
inconsistent statements and expressed an opinion (about whether he received a benefit). Id. at
1151:4–19. Thus, counsel made the argument Brown wanted him to have made and the Court
disagreed that Hart perjured himself. Counsel cannot be deemed to have performed deficiently.
With respect to the other part of Hart’s testimony Brown points to12 and the other
identified testimony,13 the Court agrees with the Government that Brown presents no evidence to
suggest there was perjury. Brown merely cites various parts of Thompson, Perkins, and Hart’s
testimony and asserts that the witnesses perjured themselves. His mere assertion that there was

perjury does not prove that any testimony was false, let alone that the United States knew any
testimony was false. Counsel cannot be deemed to have performed deficiently for failing to
make frivolous objections. See Fuller, 398 F.3d at 652; Rezin, 322 F.3d at 446.

12 The other part of Hart’s testimony that Brown points to is an exchange Hart had with a Co-Defendant’s counsel
regarding a robbery conviction. See Trial Tr. Volume 5 952:20–954:4. Nothing about this exchange suggests Hart
perjured himself.
13 With respect to Thompson, Brown first points to his testimony that he was “not confident [he was] getting a time
cut.” Trial Tr. Volume 3 183:18–20. Nothing about the cited portion of the transcript suggests Thompson perjured
himself. Second, he points to the beginning of a back-and-forth Thompson had with a Co-Defendant’s counsel on
cross-examination. See id. at 237:2. Thompson read a statement from his plea agreement—that if his offense level
under the United States Sentencing Guidelines was above 16, he would qualify for an additional one-point reduction
because he timely notified the United States Attorney’s office of his intention to plead guilty—and affirmed that he
read it before he signed the agreement. Id. at 237:3–17. Counsel suggested that this was based on a false premise
because the United States did have to prepare for a trial. Id. at 238:4–9. Thompson was charged with both
conspiracy to distribute crack cocaine and possession of crack cocaine. Superseding Indictment, United States v.
Thompson, 4:11-cr-40054-JBM-JAG-1 (ECF No. 8). After the first day of trial, his attorney filed a motion for a
directed verdict regarding the conspiracy charge. Mot. Directed Verdict, United States v. Thompson, 4:11-cr-40054-
JBM-JAG-1 (ECF No. 43). The next day, the parties announced they had reached a plea agreement: Thompson
would plead to the possession charge and the United States would dismiss the conspiracy charge. Nov. 20, 2012
Min. Entry, United States v. Thompson, 4:11-cr-40054-JBM-JAG-1. Thompson explained at Brown’s trial that he
had always intended to plead guilty to the possession charge, Trial Tr. Volume 3 239:8–9; indeed, he signed a
proffer letter on May 17, 2012, months before the trial began, see id. at 244:3–7. In any case, nothing about the
portion of the trial transcript Brown points to suggests that Thompson perjured himself. Third, Brown points to an
exchange between Government counsel and Thompson where Thompson explained that he understood that the
Government would have to file a motion to reduce his sentence below the mandatory minimum but ultimately it
would be up to the sentencing judge to determine his sentence. Id. at 295:4–23. The Court sees no inconsistencies,
let alone any evidence of falsity, in these statements. With respect to Perkins, Brown first points to her testimony
regarding a recording made on February 1, 2012. See id. at 311:6–8. The Court fails to understand what portion of
this testimony Brown believes contains any falsity or inconsistency. Second, Brown points to Perkins’s testimony
that she did not recognize one of the Government’s exhibits. See id. at 328:4–6. She testified that she recognized it
as crack but testified that the particular crack was not what she bought. Id. at 328:10–16. He also points to her
testimony on cross-examination that the Government’s exhibit was not what she gave to law enforcement after a
controlled buy. See id. at 335:7–9. Her testimony that she did not recognize the crack cocaine does not suggest she
was lying. (Indeed, it appears the crack she was shown was “mashed up” whereas when she bought it, “[i]t was all
in one big chunk.” Id. at 328:17–20.)
6. Testimony about Fear of Petitioner
Brown argues counsel was ineffective for failing to object when Tanya Clayton testified
that she and others were scared of Brown. Statement Grounds Supp. 16–17. Brown argues that
this testimony was “irrelevant, immaterial, inflammatory and prejudicial,” was given without a

proper foundation, and “caused substantial bias toward” him. Id. at 17. He argues counsel
should have “urge[d] the Court to conduct the balancing test mandated by Rule 403 of the
Federal Rules of Evidence.” Reply 15. The Government responds that Defendants’ attorneys
did object to several of the questions asked of Clayton. Resp. 32. Moreover, it argues that
Clayton’s “fear of and intimidation by Brown was an integral reason for her continued
participation” in Defendants’ criminal enterprise. Id.
Clayton testified about her involvement with Defendants. For example, she bought crack
from them, see, e.g., Trial Tr. Volume 6 1041:14–1043:8, they stayed at her house, id. at
1051:24–1052:2; and she drove them to deliver drugs, id. at 1052:5–7. She also testified that she
was scared of and threatened by Coleman and Brown. Specifically, she testified that Coleman

and Brown “would threaten to take [her] freedom, threaten to take [her] children, scare [her]”
and told her never to talk to police. Id. at 1089:14–16. She testified that Brown told her thirteen-
year-old daughter “that if she ever said anything that he would put a bullet between her eyes and
put her body in the woods.” Id. at 1092:4–8. Clayton explained that she “was very scared of
them,” id. at 1092:12, and they “would just threaten” her when she tried to argue, id. at 1092:10–
11. She further testified about an incident where she saw Government witness Shawn
Swearingen cry: She and Swearingen took a ride in her Jeep and “he cried so hard because they[,
Coleman and Brown,] had beat him up so bad, and he was hurt, and he was scared.” Id. at
1094:18–1095:3. She also testified that a person named Chris—referring to Tatum, see Trial Tr.
Volume 6 1121:7–11; Trial Tr. Volume 9 2044:9–11, Cr. ECF No. 344, who was charged with
Defendants but pleaded guilty—was “very afraid of” Coleman and Brown. Trial Tr. Volume 6
1096:3–5.14
Foundation objections were made as to some of the testimony. See id. at 1090:12

(objection to Brown’s alleged threat to Clayton’s daughter); id. at 1095:15–19 (objection to
testimony about Chris, Coleman, and Brown’s relationship). But the Government was able to
provide the proper foundation. See id. at 1090:23–1091:20; id. at 1095:21–1096:2. Brown does
not specifically identify what other testimony lacked foundation, and the Court does not believe
any further objections would have been warranted. In any case, the failure to make them would
have caused no prejudice because Government counsel could simply have asked more questions
to establish the proper foundation. Brown does not specify what testimony he believes was
hearsay. Any testimony about threats Brown or Coleman made were admissible as statements of
a party opponent and statements of coconspirators. See Fed. R. Evid. 801(d)(2)(A), (E).
It is true that no objection was made to Clayton’s testimony under Federal Rule of

Evidence 403. Under Rule 403, “[t]he court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of . . . unfair prejudice.” As the Government notes,
however, the testimony was relevant: Clayton was present for much of Defendants’ day-to-day
drug dealing and she participated in the conspiracy. See Resp. 32; id. at 9 (“Coleman and Brown
frequently relied on violence and intimidation to maintain control over the operation and prevent
individuals from contacting law enforcement.”). The testimony about Swearingen’s beating15

14 Brown also points to testimony that was elicited by his counsel on cross-examination. Statement Grounds Supp.
17 (citing Trial Tr. Volume 6 1110:8–9). As Brown’s counsel elicited the testimony, and it was responsive to his
question, he could not object to it.
15 Indeed, Swearingen testified about his beating, e.g., Trial Tr. Volume 5 772:1–3, and Brown does not challenge
that testimony.
and Chris being afraid of Brown and Coleman were similarly relevant. See May 9, 2013 Mot.
Hr’g Tr. 4:13–7:17, Cr. ECF No. 285 (denying a Co-Defendant’s motion in limine to preclude
testimony about Swearingen’s beating because it was “direct evidence of the underlying offense”
and “help[ed] establish the respective roles of the [C]o-[D]efendants as well as the, the means

and methods in which their conspiracy conducted itself”). Evidence of the threats against
Clayton, specifically, were also relevant to her credibility. United States v. Hunter, 932 F.3d
610, 621 (7th Cir. 2019) (“We previously have held that evidence of threats by a defendant
against a prosecution witness on direct examination is inadmissible unless it is linked to a
specific credibility issue at trial—like a witness’s behavior on the stand or testimony that is
inconsistent with prior statements.”). Defense counsel cross-examined Clayton and attempted to
show that she was not a credible witness due to her addiction and because she did not report
incidents to the police, see Trial Tr. Volume 6 1109:16–1110:8, and because she did not fully
cooperate right away, id. at 1131:19–11332:18, among other avenues of cross-examination.
Though there was likely some prejudicial effect considering the nature of the threats, the danger

of unfair prejudice would not substantially outweigh the probative value of the evidence.
Counsel did not perform deficiently by failing to object to this testimony and, even if he had,
there was no prejudice under Strickland. The evidence against Brown was overwhelming even
absent the testimony about his threats, assault, and intimidation.
7. Gratuities to a Witness
Next, Brown argues that counsel was ineffective for “failing to object when
governmental testimony revealed the [Government] had provided financial compensation to drug
addicts for the purpose of assisting with the arrest of petitioner.” Statement Grounds Supp. 19.
The Government merely argues that this claim is undeveloped because Brown failed to identify
“what gratuities were paid or even which witnesses he claims were given financial
compensation.” Resp. 34. In his reply, Brown identifies Perkins as a witness who had been
provided financial assistance. Reply 16 (citing Trial Tr. Volume 3 308:9). Perkins testified that
she “agree[d] to provide cooperation in exchange for monetary payment.” Trial Tr. Volume 3

308:9–13. Essentially, Brown argues the Government improperly purchased Perkins’s
testimony. Reply 16.
Brown points to no law to support his argument that it is improper for the Government to
use paid confidential informants. There is a statute, 18 U.S.C. § 201(c)(2), that prohibits giving
“anything of value to any person, for or because of [that person’s] testimony.” But it appears
that Perkins’s payment was for her assistance in conducting a controlled buy, not for her
testimony at trial. See Trial Tr. Volume 3 331:19–22 (testifying that she received either $50 or
$100 for setting up a controlled buy); United States v. Dawson, 425 F.3d 389, 393–34 (7th Cir.
2005) (finding that a “bounty”—here, a payment to a cooperator for helping law enforcement
catch the defendants—was different than a witness fee). In any case, the Seventh Circuit has

held that § 201(c)(2), which is a criminal statute, “does not exclude evidence or provide a basis
for individual remedies.” United States v. Febus, 218 F.3d 784, 796 (7th Cir. 2000). Even if it
did, the court has found that paying an informant is “not per se outrageous; rather the jury may
consider [the payment] as evidence relating to the informant’s credibility.” Id. (quotation marks
omitted); see also Dawson, 425 F.3d at 395 (“Our job, so far as it bears on whether [the
cooperating witness who received a monetary benefit for helping law enforcement] should have
been excluded from testifying at all, is to make sure that grossly unreliable evidence is not used
to convict a defendant. We do this by requiring (in effect) that the inducements be disclosed to
the jury.”).16 And here, the jury heard that Perkins received compensation for her cooperation
and that she believed she received either $50 or $100. Any objection to Perkins’s testimony on
this basis would have been frivolous, and counsel does not have a duty to make frivolous
objections. See Fuller, 398 F.3d at 652; Rezin, 322 F.3d at 446.

8. Ultimate Opinion
Brown argues that counsel was ineffective because he “neglected to object when a
prosecution witness provided testimony which concerned the ultimate issue and intruded upon
the jury’s province.” Statement Grounds Supp. 19–20. Brown is referring to Perkins’s
testimony that she knew Brown because he was a drug dealer and he sold her drugs. Id. at 20
(citing Trial Tr. Volume 3 315:2–11). The Government responds that Perkins “was testifying as
to her personal knowledge and relationship with Brown” and Coleman and argues “[t]here was
nothing improper about the line of questioning.” Resp. 35. In his reply, Brown argues that
Perkins’s testimony violated Federal Rule of Evidence 701(b). Reply 16.
A lay witness—as opposed to an expert—can testify as to an opinion so long as it is “(a)

rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge.” Fed. R. Evid. 701. “[A]n opinion is not objectionable just because it

16 Other courts have specifically held that § 201(c)(2) does not prohibit payments to informants for assisting law
enforcement “so long as the payment is not for or because of any corruption of the truth of testimony.” See, e.g.,
United States v. Anty, 203 F.3d 305, 311 (4th Cir. 2000); United States v. Harris, 210 F.3d 165, 167–68 (3d Cir.
2000). These courts explain that “[t]he use of informants to uncover criminal conduct and to prosecute violators is a
long-standing and established practice” and § 201(c)(2) was not meant to bar this long-standing practice. Anty, 203
F.3d at 310–11. So far as the Court can tell, the Seventh Circuit has not addressed this issue directly. In United
States v. Condon, 170 F.3d 687, 688–89 (7th Cir. 1999), the Seventh Circuit decided that § 201(c)(2) did not
prohibit testimony from witnesses promised immunity in exchange for cooperation because immunity was not a
thing of value. The court suggested that § 201(c)(2) could not be read to allow “prosecutors to pay cash for
favorable testimony” but did not address the question of whether informants who received payment for their
cooperation in investigations could testify about that cooperation. Id. at 689; see Harris, 210 F.3d at 168
(suggesting that Condon reserved the question of “whether [§ 201(c)(2)] allows the government to pay a witness
solely or essentially for favorable testimony, as distinct from paying a witness for collecting evidence and testifying
about what was found”).
embraces an ultimate issue.” Id. at 704. To the extent Brown thinks his counsel should have
objected to Perkins’s testimony because it concerned an ultimate issue, then, that objection is
clearly frivolous under Rule 704.
To the extent he thinks counsel should have objected to the testimony under Rule 701(b),

the objection still would have been frivolous. Brown does not explain why he thinks Perkins’s
testimony that he was a drug dealer—assuming this is even opinion testimony—was not “helpful
to clearly understanding [her] testimony or to determining a fact in issue,” see id. at 701(b). As
the Government points out, she was testifying about how she knew Brown and Coleman, which
is certainly helpful to understanding her testimony about her interactions with them. As counsel
has no obligation to make frivolous arguments, he did not perform deficiently. See Fuller, 398
F.3d at 652; Rezin, 322 F.3d at 446.
9. Controlled Buys
Brown argues that counsel was ineffective for “fail[ing] to object when individual
witnesses testified a buy was being controlled by law enforcement where there was a lack of

foundation offered, or, alternatively, testimony clearly and completely refuted the
[G]overnment’s assertion(s).” Statement Grounds Supp. 21. He points to various points in the
trial transcript which he asserts “demonstrate[] that all of the buys were not controlled.” Id.
(citing, for example, Trial Tr. Volume 3 321:6). The Government responds that “Brown does
not explain why he asserts that law enforcement did not ‘control’ the purchases, and further does
not provide any evidence other than his statement that calling the monitored purchases
‘controlled’ sent the message to the jury to place additional credibility to those purchases.”
Resp. 37. Brown’s reply elaborates on his argument somewhat. For example, he suggests that
Perkins’s February 1, 2012 buy was not controlled because “she walked to the police station to
drop off the crack.” Reply 18. He argues that there was no evidence to show that law
enforcement initiated the buy, that the purchase was monitored by law enforcement, or that the
confidential source was searched before and after the purchase by law enforcement. Id. at 19.
He argues “counsel was obligated to object . . . where evidence did not show the buy was

completely controlled by law enforcement personnel.” Id.
The Court is not aware of any legal basis for objecting to the use of the phrase
“controlled buy” to describe a purchase of drugs set up by law enforcement or a set of
parameters that must be met before a purchase of drugs may be referred to as a controlled buy.17
Any aspect of the purchase that was not controlled by law enforcement would instead be fodder
for cross-examination and argument. The objection Brown wants his counsel to have made
would be frivolous, so counsel did not perform deficiently by not making it. See Fuller, 398
F.3d at 652; Rezin, 322 F.3d at 446.
10. Leading Questions
Brown argues his counsel was ineffective for failing to object when the Government

asked some of its witnesses “leading questions which resulted in those particular witnesses
giving prejudicial answers.” Statement Grounds Supp. 22–23. He argues counsel should have
objected under Rule 403. Id. Rule 403 allows a court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” The Government responds that the questions and answers

17 The cases the Court could find that addressed whether a controlled buy was properly executed involved whether
there was probable cause for a search or arrest. See, e.g., United States v. Sidwell, 440 F.3d 865, 869 (7th Cir.
2005). Even in these cases, some lack of control—in Sidwell, for example, police were not able to see the
confidential informant after he entered an apartment building to purchase drugs—did “not negate the existence of
probable cause.” Id.
Brown points to “provide nothing to raise unfair prejudice, mislead the jury, cause delay or
present cumulative evidence” and “therefore[] [were] not subject to being excluded . . . under
Rule 403.” Resp. 38.
Brown points first to the testimony of Officer Doug Wade, Statement Grounds Supp. 22

(citing Trial Tr. Volume 3 353:13, 359:11), an “inspector with the Illinois State Police Black
Hawk Area Task Force,” Trial Tr. Volume 3 345:12–13. Wade testified that he assisted with
surveillance of a confidential source in connection with a controlled buy on October 18, 2011.
See id. at 351:14–352:1. He testified that he set up an audio recording device and a video
recording device. Id. at 353:3–5. The Government asked: “Where was the video recording
device placed?” Id. at 353:13. He responded, “It was placed in the vehicle.” Id. at 353:14. This
was not a leading question and the answer was not subject to being excluded under Rule 403. He
later testified that on October 18, 2011, he came into possession of controlled substances. Id. at
358:18–23. He testified that he “was provided the exhibit from [another officer] to transport . . .
back to the Illinois State Police headquarters and place that into secured holding.” Id. at 358:25–

359:3. The Government then showed him an exhibit and asked if he recognized it, which he said
he did. Id. at 359:4–7. He testified that the exhibit was “approximately .4 grams of purported
cocaine” and the exhibit had his signature on it. Id. at 359:9–10. The Government then asked:
“So, that’s the crack cocaine that [the other officer] gave you after the October 18th controlled
buy with [the confidential source] that you took back to place in secured storage?” Id. at
359:11–14. Wade responded: “That is correct.” Id. at 359:15. The Government’s question was
leading, but leading questions are not flatly prohibited. See United States v. Cephus, 684 F.3d
703, 707 (7th Cir. 2012); Fed. R. Evid. 611(c). Leading questions are permissible if “used with
friendly witnesses to move direct examination along rather than to elicit testimony damaging to
the opposing party that the witness might not have given in response to a neutral question.”
Cephus, 684 F.3d at 707. Wade testified he was given drugs to put into holding and that he
recognized the drugs; the Government’s question merely put the pieces together and moved the
examination along. And in any case, Wade’s identification of the exhibit as the cocaine

recovered from the October 18, 2011 controlled buy is not subject to exclusion under Rule 403.
Next, Brown points to testimony from Loretta Empson. See Statement Grounds Supp. 22
(citing Trial Tr. Volume 4 413:5, Cr. ECF No. 339). Empson testified that she bought crack
from Defendants. See Trial Tr. Volume 4 391:9–11 (Coleman); id. at 393:12–14 (Brown); id. at
395:13–15 (Clark); id. at 396:8–10 (Capers). She testified that she sometimes bought $20 worth
of cocaine a day from the Defendants, sometimes $50 worth a day, and sometimes $100 worth a
day. Id. at 397:20–398:5. She testified that Coleman, Capers, and Brown would occasionally
stay at her house. See id. at 411:12–14, 24–25. She was asked, “[W]ould you receive anything
in return for that?” to which she responded, “Sometimes.” Id. at 412:18–20. The Government
then asked her what she would receive. Id. at 412:21. She testified: “[W]hen I didn’t have any

more money, I still wanted more stuff so I’d go down and wake them up, say, Hey, give me
something. They’d – Nope, can’t do it. Then I’d get mad and kick them out of the house and
whatever.” Id. at 412:22–413:3. The Government then asked if she was referring to crack and if
she sometimes would receive crack; she affirmed that that is what she meant. Id. at 413:5–7.
The Government’s questions, “And so are you talking about crack? Sometimes you would
receive crack?” id. at 413:5–6, were not leading but rather clarifying what Empson had just
testified to. And in any case, her response that she meant crack was not unfairly prejudicial,
cumulative, misleading, or otherwise subject to exclusion under Rule 403.
Lastly, Brown points to the testimony of Stephanie Mullins. See Statement Grounds
Supp. 22 (citing Trial Tr. Volume 4 582:5). The Government asked her if she “ever ha[d] any
business dealings with [Brown.]” Trial Tr. Volume 4 582:2–3; see id. at 582:10–583:6
(identifying Brown as the man she was testifying about). She said, “Yes,” id. at 582:4, and the

Government asked, “And what did you buy from [Brown]?” id. at 582:5. She responded: “It was
crack cocaine.” Id. at 582:6. The Government’s question about what she bought from Brown
was not a leading question. Moreover, the Government had previously explained that when it
asked whether she had any business dealings with a person, it meant whether she bought
anything from the person. Id. at 578:6–8. And Mullins’s answer was not unfairly prejudicial,
cumulative, misleading, or otherwise subject to exclusion under Rule 403 either.
None of the objections Brown wishes his counsel would have made have any basis.
Counsel did not perform deficiently by failing to make these frivolous objections. See Fuller,
398 F.3d at 652; Rezin, 322 F.3d at 446.
11. Speculative Testimony

Brown argues that his counsel was ineffective because “he did not adequately contest the
[G]overnment’s use of witness testimony which was based on speculation.” Statement Grounds
Supp. 23–24. Specifically, he points to portions of Empson’s testimony. Id. at 24 (citing Trial
Tr. Volume 4 404:23, 405:12, 430:12, 430:20). The Government argues that the record belies
this claim, Resp. 39, and that Brown cannot show prejudice with respect to this allegation
because the evidence of his guilt was overwhelming, id. at 40 (“Discounting a portion or even all
of any witness’s testimony would not have changed the outcome of the trial.”).
Brown first points to the following question the Government asked Empson: “You
mentioned that these gentlemen[, Defendants,] were from Chicago. Do you know – if you know,
do you know why they came to Kewanee?” Trial Tr. Volume 4 404:23–25. A Co-Defendant’s
counsel objected on the basis that this called for speculation. Id. at 405:1. The Court sustained
the objection. Id. at 405:2. The Government then asked, “Do you know, ma’am? Yes, or no?
Do you know why?” Id. at 405:4–5. Empson responded: “To sell crack cocaine, to make

money.” Id. at 405:6. The Government followed up with, “Did any of the defendants tell you
what brought them to Kewanee?” Id. at 405:7–8. She responded: “No. I don’t know where or
how they come there.” Id. at 405:9–10. Brown’s counsel then objected and moved to strike
Empson’s answer that they came to Kewanee to sell crack. Id. at 405:11. The Court sustained
the objection, pointing out that it “sustain[ed] the [first] objection about speculation” and then
the Government “asked her the same question.” Id. at 405:12–14. The Court informed the jury:
“[T]he question [to] which I sustained the objection is, Do you know why they came to
Kewanee? You’re to strike the answer to that question. In other words, you’re not to consider
that or any of the subsequent questions in considering the evidence in this case.” Id. at 405:16–
22. Brown argues that his counsel “did not object when the court did not issue a cautionary

instruction, nor did counsel move to strike the response.” Statement Grounds Supp. 24. But in
fact counsel did object when the Government asked the question again, he did move to strike the
response, and the Court did instruct the jury not to consider the response.
Brown then points to a portion of Empson’s testimony where she said that Defendants
would “send [her] to Wal-Mart to get baggies” and would give her “enough money if [she]
needed anything, like paper towels, toilet paper, stuff like that.” Trial Tr. Volume 4 430:8–11.
The Government asked, “Did you need baggies?” id. at 430:12, to which she responded, “No. . . .
They wanted the baggies,” id. at 430:13–15. The Government asked, “Why; do you know?” Id.
at 430:16. She responded, “Probably to bag up.” Id. at 430:17. The Government then asked her
what that meant and she explained that she meant “[b]ag up their crack.” Id. at 430:18–19. She
then testified that she believed they bagged up in her basement. Id. at 430:24–431:2. A Co-
Defendant’s counsel then objected on the basis that she was speculating, id. at 431:4, apparently
at the same time the Government began to ask Empson what the basis for that belief was, id. at

431:3. The Court sustained the objection and instructed the Government to finish asking its
question. Id. at 431:5–6. Empson then explained the basis for her belief. Id. at 431:8–25.
While there was an objection to the speculation that Defendants bagged up their crack in
Empson’s basement, there was no objection to her speculation that Defendants wanted her to buy
bags at Wal-Mart to bag up their crack. But the Court is not inclined to find that counsel
performed deficiently by failing to object to that testimony; it is a commonsense inference and
was likely a matter of strategy not to object. Indeed, counsel objected to other portions of
speculative testimony. Moreover, Brown cannot show prejudice from counsel’s failure to object
to that testimony. If the Court had struck Empson’s testimony that Defendants wanted her to buy
baggies so they could bag up their crack, there would still be significant evidence from which a

jury could find Brown guilty.
12. Summary Testimony
Brown argues that his counsel was ineffective because he failed to object to testimony
from case agent Nick Welgat as prejudicial summary testimony. Statement Grounds Supp. 26.
He argues that Welgat was allowed to “bolster and/or corroborate testimony of previous
witnesses.” Id. He does not identify any specific portions of Welgat’s testimony to which his
counsel should have objected. The United States responds that defense counsel objected 25
times during Welgat’s testimony. Resp. 43. Further, it argues that “[t]here is no evidence other
than Brown’s unsupported allegation that Welgat’s testimony only bolstered or corroborated
earlier testimony of other witnesses.” Id.
A review of the record demonstrates that Brown’s counsel objected where Welgat’s
testimony or evidence tended to bolster the other witnesses’ testimony and nothing else in his

testimony was worthy of such an objection. At the time he testified, Welgat worked for the
Kewanee Police Department but was “assigned as an inspector with the Illinois State Police
Black Hawk Area Task Force.” Trial Tr. Volume 10 2415:7–17, Cr. ECF No. 345. As the case
agent, he “conducted several interviews with witnesses, informants,” “conducted several
controlled purchases,” “conducted surveillance . . . during controlled purchases[,] and
participated in search warrants and arrests of individuals involved in th[e] case.” Id. at 2416:16–
23. He testified about those activities.
At one point, Government counsel asked Welgat about a summary he prepared of the
controlled buys he participated in. See id. at 2446:25–2447:8. A Co-Defendant’s counsel then
called for a sidebar. Id. at 2447:23. Brown’s counsel argued that the summary “bolster[ed] the

testimony of the various witnesses as to what transpired” during the controlled buys. Id. at
2450:16–18. He argued that Welgat testifying that the summary was “fair, true and accurate
based upon [Welgat’s] understanding of the evidence” presented at trial would be “an unfair
opinion . . . that [would] bolster[] the credibility of some very shaky people.” Id. at 2450:19–23;
id. at 2451:22–24 (“The witness is essentially putting his seal of approval on this as accurate.
That’s bolstering.”). The Court ruled that “[b]ecause there ha[d] been conflicting testimony
regarding some of the evidence” that was reflected in the summary chart, it was “inappropriate
that it be admitted into evidence.” Id. at 2452:5–9.
In another portion of his testimony, Welgat discussed “summar[ies] [he made] of the
phone calls pertinent to the investigation.” See id. at 2453:21–2454:20. After a foundation was
laid, 2454:21–2457:20, and Brown’s counsel asked questions regarding how the summary was
made, id. at 2458:8–2459:16, the summaries were admitted, id. at 2458:18. After he testified

about what the summaries meant, the Government asked Welgat: “[W]hat do these phone tolls
and summaries you provided tell you about the communications between your [confidential
sources] and these numbers?” Id. at 2465:8–10. Welgat responded: “This information here
corroborates what the confidential informants have told us, that they have had contact.” Id. at
2465:11–13. Brown’s counsel objected to that testimony “as being pure bolstering and improper
opinion” and asked for the answer to be stricken. Id. at 2465:14–15, 18. The Court sustained
the objection and instructed the jury not to consider Welgat’s answer. Id. at 2465:16, 19–21.
Thus, Brown’s counsel did object to an exhibit and a portion of Welgat’s testimony as
improper bolstering and the Court sustained those objections. Counsel will not be deemed
ineffective for failing to make further unspecified objections.

13. Sentencing Enhancement
Brown argues that counsel was ineffective because he did not object to the Government’s
filing of an amended notice pursuant to 21 U.S.C. § 851 after his trial but before his sentencing.
Statement Grounds Supp. 27–28. Brown argues that the Government “violated [his] right to due
process” because the amended notice changed “the convictions the [G]overnment was relying
upon for sentencing purposes,” that the Government violated 21 U.S.C. § 851(e) because it was
not correcting a clerical error, and that he was prejudiced “because he was sentenced to [l]ife
imprisonment pursuant to a sentencing information which was untimely,” id. at 27–28. The
Government responds that Brown suffered no prejudice because “the initial notice . . . contained
more than the required two prior felony drug convictions.” Resp. 45. Brown replies that the
Government “abandon[ed] the [initial] § 851 notice” when it filed a new one and that he was
entitled to know the specific convictions the Government was relying on. Reply 23.
At the time Brown was sentenced, 21 U.S.C § 841(b)(1)(A) (effective Aug. 3, 2010 to

Dec. 20, 2018), imposed a mandatory minimum sentence of ten years of imprisonment. If the
person convicted under the statute had “two or more prior convictions for a felony drug offense,”
he faced a mandatory life sentence. Id. For an enhanced mandatory minimum under § 841 to
apply, the Government must “before trial . . . file[] an information with the court (and serve[] a
copy of such information on the person or counsel for the person) stating in writing the previous
convictions to be relied upon.” 21 U.S.C. § 851(a)(1). “Clerical mistakes in the information
may be amended at any time prior to the pronouncement of sentence.” Id.
The Government filed a § 851 notice for Brown on May 10, 2013. Not. Intent Rely, Cr.
ECF No. 179. The notice listed seven prior drug offenses. Id. at 1. On November 21, 2013,
after trial but before sentencing, the Government filed an “amended notice to correct clerical

mistakes in the [G]overnment’s previously filed notice.” Am. Not. Intent Rely 1, Cr. ECF No.
228. It deleted one of the convictions from the list and corrected the date and case number of
another. Id. at 2. The following day, the Government filed another “amended notice to correct
clerical mistakes in the [G]overnment’s previously filed notices.” Second Am. Not. Intent Rely
1, Cr. ECF No. 230. In that amended notice, the Government added another conviction. Id. at 2.
While Brown’s counsel objected to Brown being sentenced to mandatory life
imprisonment because the Government did not “plead and prove [the] prove the prior
convictions,” Sentencing Hr’g Tr. 47:15–16, he did not object to reliance on the amended notices
that were filed post-trial. But even if it could be considered deficient performance not to object
to the amended notices on the basis that they were untimely and contained more than clerical
corrections,18 Brown can show no prejudice. He had far more than the required two convictions.
Six of the convictions the Government relied on—four more than qualified him for the enhanced
penalty—were in each of the notices. And even if the Court had struck the amended notices,

Brown still would have been subject to mandatory life imprisonment under the initial notice.
14. Cumulative Prejudice
When deciding whether a counsel’s errors prejudiced a petitioner, courts are to consider
the cumulative prejudicial effect of the counsel’s errors rather than only analyzing the prejudicial
effect of individual errors. See Myers, 975 F.3d at 623; Washington, 219 F.3d 620 at 634−35.
Brown has not convinced the Court that his counsel made many, if any, errors. The
Court addressed prejudice—assuming for purposes of the motion that Brown could show
deficient performance—only with respect to some of the grounds. See supra Section I(b)(i)(1),
(3), (6), (11), & (13). For some of these, the Court found that Brown demonstrated no prejudice
at all. For instance, he demonstrated no prejudice from counsel’s failure to pursue plea

negotiations because he did not show that the Government would have offered him a plea
agreement on terms he would accept which would have allowed him to be sentenced to less than
life imprisonment. See supra Section I(b)(i)(3). Likewise, he demonstrated no prejudice from

18 “An error is considered a clerical mistake ‘as long as the information serves to convey the Government’s intent to
seek an enhancement based on a particular earlier conviction.’” United States v. Pirtle, 333 F. App’x 108, 110 (7th
Cir. 2009) (quoting United States v. Curiale, 390 F.3d 1075, 1076–77 (8th Cir. 2004)). The first amended notice was
proper. It removed a conviction that was clearly a misdemeanor charge. See Am. Not. Intent Rely 2. And it
corrected a date that was merely an estimate at first and added two missing digits to a case number. Id.; see Curiale,
390 F.3d at 1077 (finding that listing a crime as “sale rather than possession of illegal drugs was a clerical mistake
capable of correction by amendment under § 851(a)(1)”); United States v. Arreola-Castillo, 539 F.3d 700, 704 (7th
Cir. 2008) (finding that listing the wrong jurisdiction was a clerical error and suggesting that listing an incorrect year
of conviction is a clerical error). But the second amended notice added a new conviction; it did not clarify the dates,
case number, jurisdiction, charge, or some other information regarding a conviction that was already listed. See
Second Am. Not. Intent Rely 2. So perhaps counsel should have objected to the second amended notice.
counsel’s failure to object to the amended § 851 notices because even if the Court struck them,
the initial § 851 notice listed more than enough convictions to qualify Brown for a mandatory
life sentence. See supra Section I(b)(i)(13). And he failed to demonstrate any prejudice from
not being at the hearings discussing restraints or from having to wear restraints. See supra

Section I(b)(i)(1).
Counsel’s alleged errors at trial, however, could have a combined prejudicial effect.
Evidence and witness testimony erroneously unchallenged at trial may not individually affect the
outcome of the trial but may work together to do so. Thus, the Court must consider the
collective impact of counsel’s failure to have Clayton’s testimony about her and others’ fear of
Brown and the speculative testimony about why Defendants wanted Empson to buy bags
excluded or stricken from the record. Even considered together, the Court finds that Brown has
not shown a reasonable probability that, had counsel not made these alleged errors, the jury
would have found him not guilty. If Clayton had not been allowed to testify that people were
afraid of Brown and had Empson been stopped from speculating about why Defendants wanted

bags, there still would have been overwhelming evidence against Brown, including testimony
about numerous controlled buys from witnesses and law enforcement, phone records, wire
transfer records, and witness testimony about Defendants’ drug dealing operation.
ii. Appellate Counsel
1. Failed to Raise the Above Issues on Appeal
Brown argues that his appellate counsel was ineffective for failing to raise the above-
identified issues on appeal. Statement Grounds Supp. 28–29. The Government argues that
counsel was not required to raise every issue requested by Brown and that he cannot show
prejudice because all of his claims are meritless. Resp. 46–47.
“[C]ounsel is not required to raise every non-frivolous issue on appeal.” Martin v. Evans,
384 F.3d 848, 852 (7th Cir. 2004). “An appellate counsel’s performance is deficient if he or she
fails to argue an issue that is both obvious and clearly stronger than the issues raised.” Id. at 851.
Brown’s appellate lawyer raised numerous issues: first, that summaries of wire transfer

transactions were inadmissible, Brown, 822 F.3d at 971–73; second, that admission of those
summaries violated his Confrontation Clause rights, id. at 973–74; third, that the Government
violated Brady v. Maryland, 373 U.S. 83 (1963), in several ways, id. at 974–75; fourth, that his
due process rights were violated by the cumulative effect of trial errors, id. at 975; and fifth, that
his mandatory life sentence was improper “because a jury did not find the existence of [his] prior
felonies,” id. at 976. Brown does not argue, let alone demonstrate, that the issues raised in this
§ 2255 proceeding are “both obvious and clearly stronger than the issues” counsel did raise on
appeal. See Martin, 384 F.3d at 851. And, in any case, most of Brown’s claims are meritless or
frivolous. He has not shown deficient performance or prejudice.
2. Failure to Seek Rehearing

Brown next argues that appellate counsel “rendered deficient performance because she
did not assist [him] with filing a petition for panel rehearing” after he “(and counsel) recognized
that the appellate court ha[d] misapprehended trial facts.” Statement Grounds Supp. 29. He
states that “[c]ounsel agreed to seek permission to file an untimely petition for panel rehearing,”
yet failed to do so or advise Brown he could file a petition pro se. Id. at 30. Further, he argues
that counsel interfered with his attempt to seek rehearing “because she did not notify [him] of the
appellate court’s decision until after the time to seek rehearing had expired.” Id. at 30. The
Government responds that counsel clearly evaluated the case “and determined a post-opinion
petition for rehearing would be frivolous,” Resp. 48, and that “Brown fails to identify any basis
for the filing of a petition for rehearing,” id. at 49.
“An appointed counsel’s duties do not end when [the Seventh Circuit] renders an adverse
decision; counsel must consider filing post-opinion pleadings in the court of appeals.” United
States v. Shaaban, 514 F.3d 697, 698 (7th Cir. 2008) (Ripple, J., in chambers).19 However,

counsel has no duty to file a frivolous petition. Id. Brown contends that counsel concluded that
a petition for en banc rehearing would be frivolous but not that a petition for panel rehearing
would be. Statement Grounds Supp. 29–30. He suggests that the issue that would be raised was
factual, id. at 29, but fails to identify the issue he believes counsel should have raised. Even if
Brown could show deficient performance, then, he cannot show prejudice because he cannot
show that a petition for rehearing would have been successful.
c. Evidentiary Hearing
Brown’s ineffective assistance of counsel claims—against trial counsel and appellate
counsel—are denied without an evidentiary hearing. Most of Brown’s claims are based only on

the record and the Court has found that the record shows he is entitled to no relief for those
claims. See Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (explaining that an
evidentiary “hearing is not required if ‘the motion and the files and records of the case

19 The Shaaban decision cites section V(3) of the Seventh Circuit’s Criminal Justice Act Plan. Shaaban, 514 F.3d at
698. The Seventh Circuit plan states that “[a]fter an adverse decision on appeal . . . appointed counsel shall advise
the defendant in writing of his right to seek review of such decision by the Supreme Court of the United States.”
Seventh Circuit Judicial Plan § V(3), http://www.ca7.uscourts.gov/rules-procedures/rules/rules.htm#planV (last
visited Sept. 29, 2021). “If . . . the represented person requests it and there are reasonable grounds for counsel
properly to do so, the appointed attorney must prepare and file a petition for writ of certiorari and other necessary
and appropriate documents and must continue to represent the defendant until relieved by the Supreme Court.” Id.
“Counsel who conclude that reasonable grounds for filing a petition for writ of certiorari do not exist must promptly
inform the defendant, who may by motion request this Court to direct counsel to seek certiorari.” Id. It appears that
that the requirement that counsel file petitions for rehearing in the Seventh Circuit is merely an interpretation of this
provision. See Taylor v. United States, 822 F.3d 84, 92 n.5 (2d Cir. 2016) (“[A] review of the Seventh Circuit’s plan
(which has not been amended since 1996, well before Shaaban was decided) shows that this statement was only a
matter of interpretation, as that plan is materially the same as ours and makes no explicit mention of petitions for
rehearing or rehearing en banc.”).
conclusively show that the prisoner is entitled to no relief’” (quoting 28 U.S.C. § 2255(b))). For
claims that rely on evidence outside the record, Brown has not done enough to warrant an
evidentiary hearing. No evidentiary hearing is warranted “if the petitioner makes allegations that
are ‘vague, conclusory, or palpably incredible,’” rather than “‘detailed and specific.’” Id.

(quoting Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006)). Brown has not alleged
specific facts that, if proven, would entitle him to relief. See Galbraith v. United States, 313
F.3d 1002, 1009 (7th Cir. 2002).
II. Motion to Amend
Brown filed a motion to amend his 2255 Motion “to include a claim for relief pursuant to
[A]mendment 503, and a claim for relief under ineffective assistance of appellate counsel for her
failure to raise the argument regarding Amendment 503 on appeal.” Mot. Amend 1. The
Government did not respond to this motion.
Amendment 503 to the United States Sentencing Guidelines changed the relevant
conduct Guidelines. See United States Sentencing Guidelines Manual App. C, Vol. I, § 503.

Brown does not elaborate on how he believes this amendment is relevant to his case, but in any
case, he can show no prejudice because he was subject to a statutorily mandated life sentence.
His relevant conduct could alter his offense level—for example, it could lower the drug weight to
be attributed to him—but a change in his Guidelines range would not have affected his sentence.
The claim Brown seeks to add is clearly unmeritorious so the Court denies the motion to amend.
See Always Towing & Recovery, Inc. v. City of Milwaukee, 2 F.4th 695, 707 (7th Cir. 2021)
(“[C]ourts may deny a proposed amended pleading [under Federal Rule of Civil Procedure
15(a)(2)] if the amendment would be futile.” (quotation marks omitted)); see Johnson v. United
States, 196 F.3d 802, 805 (7th Cir. 1999) (“Because the Rules Governing Section 2255
Proceedings for the United States District Courts do not deal with amendments to motions for
collateral review, the district court should turn to Fed.R.Civ.P. 15(a).”).
III. Certificate of Appealability
When a district court enters a final order adverse to an applicant, it must issue or deny a

certificate of appealability. Rule 11(a), Rules Governing § 2255 Proceedings. A court can grant
a certificate of appealability “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Brown has not made such a showing. The
Court, therefore, declines to issue a certificate of appealability.
CONCLUSION
Accordingly, Petitioner Jerry Brown’s Motion to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody, Pursuant to Title 28, United States Code, § 2255, ECF No. 1,
and Motion to Amend, ECF No. 13, are DENIED. The Clerk is directed to enter judgment and
close the case.
Entered this 29th day of September, 2021.

s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136570. Public record. Not legal advice.