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). (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
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
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
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.
§ 2255 Standards
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. 2015)).
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
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
(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
(2) Count Five, which related to the October 23, 2009,
robbery of Bank Mutual charged in Count Four (id. at
(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 1-6).
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
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.,
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.
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.
Pre-Indictment Delay Under Fifth Amendment Right to Due
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
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');">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 ...