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Clark v. United States

United States District Court, E.D. Wisconsin

February 21, 2018




         This 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). (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. (No. 11-CR-30, Doc. 189). Clark appealed his conviction and sentence (Doc. 191); the Seventh Circuit affirmed the Court's judgment (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 obvious issues”:
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 jury));
d. sufficiency of the evidence regarding FDIC insurance (Doc. 2 at 32-37);
e. constructive amendment to the Indictment (Doc. 2 at 38-45);
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 Procedure)); and
(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)).

         Having 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.

         I. § 2255 Standards

         The 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).

         Clark's asserted grounds for relief arise almost exclusively[1] 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. 2015)).

         To 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).

         To 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.

         Finally, 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.

         II. Analysis

         A. Failure to Appeal Denial of Rule 29 Motion

         At the 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.)

         Clark's 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)).[2]

         The 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 (No. 11-CR-30, Doc. 1 at 1-2);
(2) Count Five, which related to the October 23, 2009, robbery of Bank Mutual charged in Count Four (id. at 5-6);
(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).

         At 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 1-6).

         The 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.

         At this 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.[3] “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).

         The 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., 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. (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 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.

         Accordingly, 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 deficient.

         Thus, 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.

         The 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.

         B. Failure to Appeal Denial of Motion to Dismiss on Sixth Amendment Grounds

         Clark's 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.

         i. Pre-Indictment Delay Under Sixth Amendment Right to Speedy Trial

         The 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).

         Accordingly, 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.

         Likewise, 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 Due Process

         Pre-indictment 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.

         Recently, 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. Id.

         The 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 majority, speculated:

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. Id.

         Judge Hamilton filed a concurring opinion that highlighted the very limited possibility of finding a due process violation on similar facts:

[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');">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 these concerns.

Id. at 824 (Hamilton, J. concurring).

         In 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 ...

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