United States District Court, E.D. Wisconsin
MEMORANDUM AND ORDER
PHIL GILBERT, District Judge.
matter comes before the Court on petitioner Ernest F.
Clark's motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). Clark
appeared pro se at trial with standby counsel. On
February 24, 2012, a jury found Clark guilty of several
counts of both armed robbery, in violation of 18 U.S.C. §§ 2,
2113(a), and 2113(d), and use of a firearm in a violent
crime, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii).
(Case No. 11-CR-30, Doc. 171). Several months later, on July
9, 2012, the Court sentenced Clark to serve a total of 1, 951
months in prison followed by a 5-year term of supervised
release. (Case No. 11-CR-30, Doc. 189). Clark appealed his
conviction and sentence (Doc. 191); the Seventh Circuit
affirmed the Court's judgment (Case No. 11-CR-30, Doc.
237). Clark then filed the timely § 2255 motion now before
the Court. (Doc. 1). The Court directed briefing on
Clark's § 2255 motion (Doc. 4, 7), and briefing is now
complete (Doc. 15, 18). Clark's § 2255 motion rests
primarily on his assertion that his appellate counsel was
ineffective in the following ways:
(1) not appealing this Court's denial of his Rule 29
motion (Doc. 1 at 6-7);
(2) not appealing this Court's denial of his "Motion
to Dismiss for violation of the Sixth Amendment Right to
Speedy Trial" (Doc. 1 at 7);
(3) not appealing the "structural error" that
resulted from this Court's having conducted certain
proceedings in the trial via speakerphone (Doc. 1 at 8);
(4) not appealing the "denial of a Fair trial"
(Doc. 1 at 8-9);
(5) failing to "cite the controlling Seventh Circuit
precedent in his opening brief" (Doc. 2 at 2-9);
(6) failing to pursue the following "significant and
a. lack of probable cause at the time of Clark's arrest,
resulting in the illegal collection of Clark's DNA (Doc.
2 at 10-16);
b. issuance of a search warrant "founded upon deliberate
falsehoods and misleading omissions" (Doc. 2 at 16-25);
c. deprivation of due process resulting from errors in the
grand jury proceedings (Doc. 2 at 26-32 (Clark has stated two
separate but seemingly related grounds in this regard, both
of which point to errors resulting from the alleged failure
to provide evidence of FDIC insurance status to the grand
d. sufficiency of the evidence regarding FDIC insurance (Doc.
2 at 32-37);
e. constructive amendment to the Indictment (Doc. 2 at
f. unreasonable sentence (Doc. 2 at 58-59);
g. "lies" of government counsel (Doc. 2 at 45-50);
h. failure to promptly present Clark before a magistrate
judge (Doc. 2 at 50-58 (Clark has stated two separate claims
relating to presentment before a Magistrate Judge, both of
which relate to Rule 5 of the Federal Rules of Criminal
(7) failing to object to improper charging language in the
Indictment (Doc. 8 at 1-4 (it is unclear whether Clark is
asserting this as a stand-alone ground or through the lens of
a challenge to his appellate counsel's performance, as
the Court will discuss in further detail)).
reviewed each of these grounds for relief, the Court has
determined that none are meritorious, and therefore the Court
will deny Clark's § 2255 motion. The Court begins
providing the applicable standards governing § 2255 motions
(Part I, infra ) before analyzing the merits of
Clark's motion (Part II, infra ). The Court will
assume the reader's familiarity with the underlying
factual and procedural history, together with the Seventh
Circuit's decision on direct appeal, United States v.
Clark, 754 F.3d 401 (7th Cir. 2014). Where necessary,
the Court will provide background in discussing each of
Clark's specific claims. The Court will also address in a
separate section (Part III, infra ) Clark's
recently-filed motion to supplement his § 2255 motion.
Court must grant a § 2255 motion when a defendant's
"sentence was imposed in violation of the Constitution
or laws of the United States." 28 U.S.C. § 2255.
However, "[r]elief under § 2255 is available only in
extraordinary situations, such as an error of constitutional
or jurisdictional magnitude or where a fundamental defect has
occurred which results in a complete miscarriage of
justice.'" United States v. Coleman, 763
F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United
States, 723 F.3d 870, 878-79 (7th Cir. 2013), cert.
denied, 134 S.Ct. 2830 (2014)), cert. denied,
135 S.Ct. 1574 (2015). It is proper to deny a § 2255 motion
without an evidentiary hearing if "the motion and the
files and records of the case conclusively demonstrate that
the prisoner is entitled to no relief." 28 U.S.C. §
2255(b); see Sandoval v. United States, 574
F.3d 847, 850 (7th Cir. 2009).
asserted grounds for relief arise almost
exclusively under the Sixth Amendment's
guarantee of effective assistance of counsel on his direct
appeal. See, e.g., Vinyard v. United
States, 804 F.3d 1218, 1224-25 (7th Cir. 2015) (citing
Strickland v. Washington 466 U.S. 668, 684-86
(1984); Evitts v. Lucey, 469 U.S. 387 (1985);
Wyatt v. United States, 574 F.3d 455, 457 (7th Cir.
2009); Gray v. Greer, 800 F.2d 644, 646 (7th Cir.
1986)). "Under the familiar two-pronged test of
Strickland, [Clark] must show both that his
attorney's performance was deficient and that he was
prejudiced as a result." Vinyard, 804 F.3d at
1225 (citing Arrington v. Richter, 562 U.S. 86, 104
(2011); Carter v. Douma, 795 F.3d 726, 735 (7th Cir.
satisfy Strickand 's first prong-requiring that
appellate counsel's performance was deficient-Clark must
establish that "the representation his attorney provided
fell below an objective standard of reasonableness."
Vinyard, 804 F.3d at 1225 (citing
Strickland, 466 U.S. at 688; Rodriguez v. United
States, 286 F.3d 972, 983 (7th Cir. 2002)). This is a
highly deferential standard; the Court will deem Clark's
appellate counsel's assistance deficient only if it
determines that he failed to "argue an issue that is
both obvious' and clearly stronger' than the issues
actually raised." Makiel v. Butler, 782 F.3d
882, 897-98 (7th Cir. 2015) (citing Brown v. Finnan,
598 F.3d 416, 425 (7th Cir. 2010); Lee v. Davis, 328
F.3d 896, 900-01 (7th Cir. 2003)). "Proving that an
unraised claim is clearly stronger than a claim that was
raised is generally difficult because the comparative
strength of two claims is usually debatable.'"
Makiel, 782 F.3d at 898 (quoting Shaw v.
Wilson, 721 F.3d 908, 915 (7th Cir. 2013)). Moreover,
the failure to raise meritless claims cannot constitute
deficient performance. Warren v. Baenen, 712 F.3d
1090, 1104 (7th Cir. 2013).
satisfy Strickland 's second prong-prejudice
resulting from appellate counsel's performance-Clark must
establish that there is "a reasonable probability that
the issue his appellate attorney failed to raise would have
altered the outcome of the appeal, had it been raised."
Brown v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010)
(quoting Lee, 328 F.3d at 901, which states the
standard in a somewhat heightened fashion: "Prejudice is
established if the issue not raised may have resulted in a
reversal of the conviction or an order for a new trial."
(internal quotations omitted)). "This means there must
be a reasonable probability that the issue not raised would
have altered the outcome of the appeal had it been
raised." Lee, 328 F.3d at 901.
the Court provides the standard applicable to the issuance or
denial of a certificate of appealability. Under Rule 11 of
the Rules Governing Section 2255, the Court is obliged to
"issue or deny a certificate of appealability when it
enters a final order adverse to the applicant." A
petitioner is not entitled to a certificate of appealability
unless he makes "a substantial showing of the denial of
a constitutional right, " 28 U.S.C. § 2253(c)(2),
meaning that "reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have
been resolved in a different manner or that issues presented
were adequate to deserve encouragement to proceed further,
" Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). If the Court grants a certificate of appealability,
it must "indicate which specific issue or issues"
the certificate of appealability covers. 28 U.S.C. §
2253(c)(3). Clark has raised a substantial number of issues.
Therefore, the Court will address the issuance of a
certificate of appealability at the end of its analysis of
each of those issues.
Failure to Appeal Denial of Rule 29 Motion
close of the Government's case in chief, Clark moved for
a judgment of acquittal pursuant to Rule 29(a) of the Federal
Rules of Criminal Procedure, arguing that the
Government's evidence was insufficient to sustain a
conviction. (Doc. 200 at 623:15-624:11). Clark did not
specify any basis for that motion. Instead, Clark simply
stated, "Correct, " in response to the Court's
question, "Are you also making a motion to dismiss at
the close of the Government's case because they
haven't made a prima facie showing?" ( Id.
) The Court denied Clark's Rule 29 motion, stating that
it "f[ound] that the Government ha[d] established enough
evidence to proceed further with this case, ha[d] made a
prima facie showing." ( Id. )
appellate attorney did not appeal the Court's denial of
that motion, and Clark now asserts that the failure to do so
was constitutionally ineffective assistance of counsel.
Specifically, Clark argues that the Government did not prove
that he had advance knowledge that his co-actor Robin Arnold
was going to use a gun in connection with several of the
armed robberies, thus undermining Clark's § 924(c)
convictions. (Doc. 1 6-7; Doc. 18 at 1-6 (also raising
argument regarding language of § 924(c) counts in Indictment,
which charged him with "us[ing] and brandish[ing] a
firearm in furtherance of a crime of violence"; this
relates to Clark's seventh ground for relief, raised in
his supplemental brief, so the Court will deal with it in
connection with addressing that ground)).
Indictment charged Clark with six separate counts of knowing
use and brandishment of a firearm in furtherance of a crime
of violence, in violation of §§ 2 and 924(c)(1)(A)(ii):
(1) Count Two, which related to the October 27, 2008, robbery
of U.S. Bank charged in Count One (Case No. 11-CR-30, Doc. 1
(2) Count Five, which related to the October 23, 2009,
robbery of Bank Mutual charged in Count Four ( id.
(3) Count Seven, which related to the November 4, 2009,
robbery of National City Bank charged in Count Six (
id. at 7-8);
(4) Count Nine, which related to the November 21, 2009,
robbery of Maritime Savings Bank charged in Count Eight (
id. at 9-10);
(5) Count Thirteen, which related to the February 17, 2010,
robbery of Anchor Bank charged in Count Twelve ( id.
at 13-14); and
(6) Count Sixteen, which related to the August 18, 2010,
robbery of Pyramax Bank charged in Count Fifteen (
id. at 17-18).
trial, the Government asserted that, as to the first five of
those counts-Counts Two, Five, Seven, Nine, and Thirteen-
Clark entered the banks with Arnold, who held the gun. The
Government argued that Clark was guilty of § 924(c)(1)(A)(ii)
because he aided and abetted the use of the firearm; that is
why the Government included § 2 in those charges. Clark now
argues that the Government did not prove that he had advance
knowledge that Arnold would use a gun during the robberies as
required to find guilt for aiding and abetting a § 924(c)
violation, under Rosemond v. United States, 134
S.Ct. 1240 (2014). ( See Doc. 1 at 6-7; Doc. 18 at
Supreme Court issued Rosemond while Clark's
appeal was pending before the Seventh Circuit;
Rosemond holds that "[a]n active participant in
a [crime] has the intent needed to aid and abet a § 924(c)
violation when he knows that one of his confederates will
carry a gun." 134 S.Ct. at 1249. Going further, the
Supreme Court noted that:
the § 924(c) defendant's knowledge of a firearm must be
advance knowledge-or otherwise said, knowledge that enables
him to make the relevant legal (and indeed, moral) choice.
When an accomplice knows beforehand of a confederate's
design to carry a gun, he can attempt to alter that plan or,
if unsuccessful, withdraw from the enterprise; it is deciding
instead to go ahead with his role in the venture that shows
his intent to aid an armed offense. But when an
accomplice knows nothing of a gun until it appears at the
scene, he may already have completed his acts of assistance;
or even if not, he may at that late point have no realistic
opportunity to quit the crime. And when that is so, the
defendant has not shown the requisite intent to assist a
crime involving a gun.... For the reasons just given, we
think that means knowledge at a time the accomplice can do
something with it-most notably opt to walk away.
By virtue of § 924(c), using a firearm at a [crime] ups the
ante. A would-be accomplice might decide to play at those
perilous stakes. Or he might grasp that the better course is
to fold his hand. What he should not expect is the capability
to hedge his bets, joining in a dangerous criminal scheme but
evading its penalties by leaving use of the gun to someone
else. Aiding and abetting law prevents that outcome, so long
as the player knew the heightened stakes when he decided to
stay in the game.
Id. at 1249-50. The Supreme Court rejected the
Government's position that this foreknowledge requirement
would be "met whenever the accomplice, having learned of
the firearm, continues any act of assisting the drug
transaction." Id at 1250-51. In doing so, the
Supreme Court pointed out that the Government's
suggestion-essentially, requiring a defendant to run away
from a crime upon learning of the use of a gun-might increase
the danger of the situation. Id. at 1251.
Nonetheless, the Supreme Court pointed out that "if a
defendant continues to participate in a crime after a gun was
displayed or used by a confederate, the jury can permissibly
infer from his failure to object or withdraw that he had such
knowledge. In any criminal case, after all, the factfinder
can draw inferences about a defendant's intent based on
all the facts and circumstances of a crime's
commission." Id. at 1250 n. 9.
stage, the Court is called upon to determine only whether
Clark's appellate counsel was ineffective in failing to
appeal the Court's denial of Clark's motion for
acquittal on the basis of insufficient evidence in light of
Rosemond.  "When faced with a challenge to
the sufficiency of the evidence, [the Seventh Circuit] must
view the evidence in the light most favorable to the
prosecution and determine whether any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.'" Lawson, 810 F.3d 1032,
1039 (7th Cir. 2016).
evidence against Clark was overwhelming-whether viewed in
light of the jury instructions given or in light of
Rosemond -and therefore a
sufficiency-of-the-evidence challenge would have failed on
direct appeal, making appellate counsel's performance
neither deficient nor prejudicial. Clark's co-defendant,
Eric Griffin, testified at Clark's trial that, with
respect to Counts Two, Five, and Seven, there was an explicit
plan that Arnold would carry a gun to "hold the floor
down" while Clark would actually retrieve the money. (
See, e.g., Case No. 11-CR-30, Doc. 199 at
379:8-380:13, 396:25-402:20, 403:15-18, 410:3-14). Griffin
also stated that he and Clark both owned and controlled the
guns that were used in the robbery and recovered during a
search of Griffin's house. (Case No. 11-CR-30, Doc. 200
at 476:15-479:18). The employees at each bank testified that
the robberies all occurred in the same way: one individual
(later identified as Arnold) would enter with a gun, followed
by another (Clark), who would access the vault. ( See
generally Case No. 11-CR-30, Doc. 198, 199).
Surveillance footage always corroborated the witnesses'
version of events. Arnold and Clark acted in practically the
same way every time; simply put, a reasonable conclusion from
this testimony was that Clark had planned on Arnold's
presence and use of a gun during each robbery. Arnold's
description of each bank robbery supports this conclusion: he
always had a gun of the type owned/controlled by Griffin
and/or Clark; Clark, meanwhile, would be in charge of taking
the money. ( Id. at 499:18-511:24). Finally, the
Court must point out that, after the first robbery (at which
Griffin's testimony established Clark's foreknowledge
of a weapon), Clark clearly knew how Arnold had operated in
the prior robberies and, if he disapproved of it, could have
withdrawn from future crimes. He did not. In light of all of
this evidence, even under Rosemond 's heightened
foreknowledge standard, Clark was clearly guilty beyond a
reasonable doubt of the § 924(c) charges.
this Court cannot envision a successful direct appeal on the
basis of sufficiency of the evidence, and, because the
sufficiency of the evidence challenge would have been
unsuccessful, Clark suffered no prejudice as a result of
counsel's failure to raise it. Cf. Lawson, 2016
WL 212796, at *7-*8 (acknowledging error in § 924(c)
instruction following Rosemond, because the evidence
supported defendant's foreknowledge in circumstances
similar to this case). In any event, at the very least, the
arguments raised by appellate counsel were clearly stronger
than the sufficiency-of-the-evidence issue (the issues that
were raised precipitated a lengthy discussion of an
unsettled area of law), meaning that counsel was not
the Court is obliged to reject Clark's argument that his
appellate counsel was deficient for failing to appeal the
denial of his Rule 29 motion in light of Rosemond.
Court will, however, grant Clark a certificate of
appealability on this issue. The Court is cognizant of the
fact that its analysis of this issue is extremely fact-based.
Jurists of reason might disagree as to whether the evidence
offered at trial satisfied the elements of the 18 U.S.C. §
924(c) charges against Clark in light of Rosemond.
And, while the Court feels strongly that the arguments raised
by appellate counsel were stronger than the Rosemond
argument, again, jurists of reason could disagree.
Accordingly, a certificate of appealability is appropriate as
to this issue.
Failure to Appeal Denial of Motion to Dismiss on Sixth
next asserted ground for relief is that his appellate counsel
was ineffective in failing to appeal the Court's denial
of Clark's motion to dismiss on the basis of his Sixth
Amendment right to a speedy trial. (Doc. 1 at 7; Doc. 18 at
8-16). The Government understood Clark to be making an
argument related to pre-indictment delay (Doc. 15 at 13), but
Clark disavows that position and argues, instead, that the
post-indictment period violated his Sixth Amendment right to
a speedy trial (Doc. 18 at 8-16). For the sake of
completeness, the Court will determine whether Clark's
appellate counsel should have pursued a speedy trial issue on
appeal regarding either pre-trial delay, whether on Sixth
Amendment or Fifth Amendment grounds, or post-trial delay.
Pre-Indictment Delay Under Sixth Amendment Right to Speedy
pre-indictment delay in Clark's case was not problematic
under the Sixth Amendment; therefore, the issue lacked merit
and failure to raise it on appeal did not prejudice Clark.
Generally speaking, pre-indictment delay does not implicate
Sixth Amendment concerns. See, e.g., United
States v. Marion, 404 U.S. 307, 315 (1971) ("On its
face, the protection of the [Sixth] Amendment is activated
only when a criminal prosecution has begun and extends only
to those persons who have been accused' in the course of
that prosecution. These provisions would seem to afford no
protection to those not yet accused, nor would they seem to
require the Government to discover, investigate, and accuse
any person within any particular period of time.").
Rather, "congressionally-established statutes of
limitation provide the primary safeguard against unreasonable
delay in prosecutorial charging decisions." United
States v. Hunter, 197 F.3d 862, 865 (7th Cir. 1999)
(citing United States v. Pardue, 134 F.3d 1316, 1319
(7th Cir. 1998)); see also Clark, 754 F.3d
at 405 ("Someone who is only the target of a criminal
investigation has no right to have the government wrap up its
investigation quickly and bring charges, even if the target
is aware of the investigation."); United States v.
Richardson, 780 F.3d 812, 816-17 (7th Cir. 2015).
to the extent that Clark's appellate counsel had raised
this claim on appeal, the claim would have been rejected;
Clark, therefore, suffered no prejudice as a result of the
failure to raise the claim.
the Court will not issue a certificate of appealability as to
this claim. It is well settled that the Sixth Amendment does
not cover pre-indictment delay. See, e.g.,
Marion, 404 U.S. at 315. Accordingly, jurists of
reason would not debate that Clark is not entitled to relief
on this ground.
ii. Pre-Indictment Delay Under Fifth Amendment Right to
delay can, however, run afoul of the Fifth Amendment's
Due Process Clause, which "has a limited role to play in
protecting against oppressive delay, " United States
v. Lovasco, 431 U.S. 783, 789 (1977), but an argument on
that basis was extremely unlikely to succeed and, therefore,
failure to assert it was not deficient performance.
in Richardson, the Seventh Circuit considered a
situation bearing some similarities to Clark's. 780 F.3d
at 814-15. There, a defendant was arrested by state
authorities for committing domestic battery. Id. at
814. State authorities searched the defendant's home and
found guns and ammunition. Id. The defendant had
previously been convicted of a federal crime, meaning that
his possession of the guns and ammunition violated federal
law. Id. Accordingly, federal authorities filed a
criminal complaint and affidavit of probable cause against
the defendant in federal court, together with a federal
detainer in the state jail in which the defendant was being
held. Id. The defendant remained in jail while the
state charges against him were pending. Id. He pled
guilty to those charges approximately 15 months after his
arrest, and was sentenced to time served. Id. at
815. He, thus, would have been released but for the federal
detainer. Id. Instead, he was arrested and jailed on
a federal warrant and then indicted on federal charges of
being a felon in possession of a firearm. Id. He
moved to dismiss those charges against him, arguing that his
Sixth Amendment right to a speedy trial was violated by the
fact that those federal charges hung over his head for the 15
months he was in state custody. Id. The district
court denied that motion and the defendant appealed.
Seventh Circuit flatly rejected the defendant's Sixth
Amendment argument, but then acknowledged that the Fifth
Amendment's Due Process Clause might have provided the
better analytical framework. Judge Posner, writing for the
Suppose Indiana had dawdled in prosecuting Richardson and as
a result not 16 months but 3 years had elapsed between the
filing of the federal complaint, affidavit, and detainer and
the federal indictment. A delay of such length might have
seriously prejudiced Richardson's defense. The best
solution in such a case might be, as suggested in Pharm
v. Hatcher, 984 F.2d [783, ] 786-87 [(7th Cir. 1993)],
to inquire whether the prejudice was so great, and not
excused by any legitimate need of the government to complete
a thorough investigation before indicting, that the delay had
denied the defendant due process of law. See also United
States v. Lovasco, 431 U.S. 783, 796-97, 97 S.Ct. 2044,
52 L.Ed.2d 752 (1977); United States v. Zukowski,
supra, 851 F.2d at 178; United States v.
Samples, 713 F.2d 298, 302 (7th Cir. 1983); United
States v. Sanders, 452 F.3d 572, 581-83 (6th Cir. 2006).
Richardson, 780 F.3d at 818. Nonetheless, the
majority concluded that the defendant had not shown the
requisite delay, and so rejected any due process argument.
Hamilton filed a concurring opinion that highlighted the very
limited possibility of finding a due process violation on
[I]t's telling that none of the cases cited by the
majority have actually found a due process violation on such
facts. See United States v. Lovasco, 431 U.S. 783,
796 (1977) ("We therefore hold that to prosecute a
defendant following investigative delay does not deprive him
of due process, even if his defense might have been
somewhat prejudiced by the lapse of time. ")
(emphasis added); United States v. Zukowski, 851
F.2d 174, 178 (7th Cir. 1988) (suggesting that due process is
more appropriate challenge but finding no due process
violation because pre-indictment delay did not prejudice
defendant); United States v. Samples, 713 F.2d 298,
302 (7th Cir. 1983) (no due process violation where defendant
challenged twenty-month delay between dismissal of first
indictment and re-indictment). The majority emphasizes
Pharm v. Hatcher, 984 F.2d 783 (7th Cir. 1993), as
support for this potential solution, but Pharm
stated flatly: "The Due Process Clause... plays only a
limited role in protecting against oppressive prosecutorial
delay. In fact, we have never found pre-accusation delay
rising to the level of a constitutional violation."
Id. at 786 (citation omitted). On closer inspection,
the due process cases do not offer much of a solution to
Id. at 824 (Hamilton, J. concurring).
short, the Court takes from Richardson that a due
process challenge to pre-indictment delay is a long shot, and
particularly in situations similar to Clark's. There is
no indication that Clark suffered any prejudice as a result
of the pre-indictment delay, and certainly both the state and
federal governments had "legitimate need[s], "
id. at 818, to prosecute Clark in succession rather
than simultaneously. For these reason, the Court finds that
the due process issue was clearly weaker than those actually
raised by appellate counsel. Accordingly, appellate
counsel's performance was not deficient.
Court will not grant Clark a certificate of appealability on
this issue. It is very difficult to establish that
pre-indictment delay violates a defendant's due process
rights. See, e.g., id. at 824 (Hamilton, J.,
concurring). Accordingly, jurists of ...