Blake v. United States

• Decision Date: 24 September 2013
• Docket Number: No. 11–3183.,11–3183.
• Citation: 723 F.3d 870
• Parties: Byron BLAKE, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

723 F.3d 870

Byron BLAKE, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 11–3183.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 22, 2013.

Decided July 25, 2013.

Rehearing and Rehearing En Banc Denied Sept. 24, 2013.^*

Matthew Robert Carter (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner–Appellant.

Robert L. Garrison (argued), Thomas Matthew McGrath, Attorneys, Office of the United States, Fairview Heights, IL, for Respondent–Appellee.

Before RIPPLE and ROVNER, Circuit Judges, and BARKER, District Judge. ^**

BARKER, District Judge.

This appeal brought by Petitioner Byron Blake (“Blake”) seeks our review of the district court's denial of his habeas petition, brought pursuant to 28 U.S.C. § 2255 to challenge his convictions and sentence. Blake's primary legal issue is that each of his three (actually four) prior attorneys, respectively, subjected him to ineffective assistance during the various stages of his prosecution and appeal. Resolving these claims requires a detailed factual explication, but the controlling legal principles reflect well settled law. Having carefully reviewed Blake's claims, we are persuaded that the District Court's denial of his petition for habeas relief was well founded; thus, we affirm the ruling(s) below.

I. BACKGROUND

On October 19, 2006, a federal grand jury convened in the Southern District of Illinois returned a one-count indictment against Blake and a co-defendant charging them with the offense of conspiracy to distribute and possess cocaine in violation of 21 U.S.C. § 846. Blake retained attorneys Frank R. Fabbri (“Fabbri”) and Nick A. Zotos to represent him, and they entered their appearances on October 30, 2006. A trial date was initially set for January 9, 2007, well within the seventy days required by the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq.

Unbeknownst to Blake (and apparently only to Blake) at the time, Mr. Fabbri was, himself, under criminal investigation by federal law enforcement officers for a felony offense unrelated to the charges against Blake. To avoid prosecutive conflicts of interest, the Fabbri investigation was being supervised by an assistant United States Attorney from the Central District of Illinois. Blake's case was overseen by Assistant United States Attorney Ranley Killian in the Southern District of Illinois.

At the time the Blake prosecution commenced, AUSA Killian was apparently aware that an ongoing criminal investigation was underway targeting Mr. Fabbri, but Killian's knowledge was limited since he and the other prosecutors in his district had been “screened off” from the Fabbri investigation to avoid conflicts of interest. The record reflects that Killian possessed no information regarding the merits of the Fabbri investigation. However, he and certain other AUSAs from the Southern District of Illinois had been informed that there was a possibility that they would be called to testify as witnesses in the Fabbri prosecution, if an indictment were returned and the case went to trial. Blake maintains but without citing any evidentiary support that despite the “screening off” of the Southern District of Illinois prosecutors from the Fabbri prosecution, the lawyers had nonetheless communicated with one another about his case as well as the Fabbri investigation. In the absence of any evidence to corroborate his suspicion, we treat this assertion as merely that—a suspicion.

Approximately one week following the entry by Mr. Fabbri of his appearance on behalf of Blake, that is, on November 8, 2006, Blake submitted to a proffer session with the government investigators which interview had been arranged or at least consented to by his counsel. Blake's co-defendant also had participated in a proffer session with law enforcement agents six days prior. ¹ Blake points out that his proffer session occurred before Mr. Fabbri had conducted a review of the government's discovery materials, so Mr. Fabbri's advice that he submit to that interview apparently was based simply on the nature of the allegations asserted in the indictment against Blake, or Mr. Fabbri's sense of the strength of the government's case or, perhaps, because Blake's co-defendant had already done likewise, or some combination of these factors. The record is undeveloped as to Mr. Fabbri's thinking or intentions.

On December 15, 2006, Mr. Fabbri filed a motion to continue the January 9, 2007 trial date. On December 18th, at a final pretrial conference conducted by the district judge, Blake, apparently learning for the first time that his counsel was seeking a continuance of the trial, emphatically objected to any continuance, stressing that he absolutely wanted to go to trial on January 9th, as currently scheduled. Faced with his client's objection, Mr. Fabbri withdrew the motion for continuance.

Following the pretrial conference on December 18, 2006, AUSA Killian learned that an indictment of Mr. Fabbri was imminent, prompting him to immediately withdraw from further responsibility for or involvement in Blake's prosecution. AUSA Killian was replaced on the Blake prosecution by AUSAs Garrison and Boyce. Two days thereafter, on December 20, 2006, the two newly assigned AUSAs filed a sealed motion with the district court seeking a judicial determination as to whether Mr. Fabbri's representation of Blake presented a conflict of interest. In that motion, the government stated that it “believe [d] that Attorney Fabbri has an actual, or at least a significant potential conflict of interest in representing Byron Blake,” ² and thus it brought the issue to the judge's attention seeking a determination as to the nature and extent of the conflict, if any. The government also stated in its motion that while the motion could have been brought “at an earlier point in time,” the government “until recently believed that the case was in a posture where there was more time prior to trial of this matter, and that the investigation of Attorney Fabbri would have proceeded to a prosecution by that point in time which would likely have self-resolved the issue.” ³

On December 19, 2006, the newly assigned prosecutors filed a sentencing enhancement notification under 21 U.S.C. § 851(a), informing the court (and Blake) of the government's intention to invoke at sentencing Blake's prior controlled substance offense conviction, if a conviction ensued.

The conflict of interest motion filed by the government was promptly considered by the district judge at a hearing convened on December 28, 2006. Prior to addressing the issues raised in the sealed motion filed by the government, while Mr. Fabbri was still counsel of record, the district judge appointed attorney Steven V. Stenger to represent Blake for purposes of that hearing. Before the motion could be addressed by the court, however, Mr. Fabbri moved to withdraw as Blake's counsel, which request the court granted. Mr. Stenger's appointment to represent Blake was then expanded by the judge to include all matters related to his defense. Mr. Stenger stated to the court that he intended to file a motion seeking Blake's release on bond pending trial. In light of Mr. Stenger's proposed filing, the court set a bond hearing for January 9, 2007, which was, coincidentally, the same date as Blake's original trial setting.

At the December 28th hearing, the district judge also reset Blake's trial for April 17, 2007, to reflect the change in defense counsel and the need for additional preparation time for the trial. When counsel for the government inquired of the district judge whether the time period between the filing of their conflict of interest motion and the January 9, 2007 bond hearing would be tolled under the Speedy Trial Act (“the Act”), the judge temporized, saying, “I don't know. This is an unusual situation.” ⁴ No such finding was ever made by the district judge.

It is likely that one of the things that made the situation “unusual” in the judge's mind was that approximately eight months earlier he had been informed of a similar allegation of a conflict of interest on the part of Mr. Fabbri in another criminal prosecution. On that occasion, the conflict issue was resolved without any direct involvement by the district court, which led the judge to assume that Mr. Fabbri apparently had had no conflict of interest after all. When the conflict issue arose in Blake's case, the district judge recalled the prior situation, but, because that defendant elected to proceed with Mr. Fabbri as his counsel, he “just assumed that the matter had resolved itself one way or the other.” In neither case was the district judge required to make an inquiry himself or a ruling.⁵

During Blake's January 9, 2007 bond hearing, the government again requested that the time period between the filing of the bond reduction motion by Defendant and the date of that hearing be deemed excludable under the Speedy Trial Act calculations based on an “ends of justice” finding by the district court. The judge, however, again refrained from entering that finding, stating that “[a]pparently everyone was aware of this situation, but it was only when the defendant jumped up and said he wanted to go to trial in ten days that the motion comes.” ⁶ As an alternative to the Speedy Trial Act finding by the judge, the government sought an order setting Blake's trial for a date on or before March 12, 2007. At the February 26, 2007, hearing on the government's motion, Blake waived his right to a jury trial and consented to his attorney's (Stenger) plan to file a series of pretrial motions. The district court thus rescheduled the bench trial for March 23, 2007 and denied as moot the government's motion for speedy trial.

On February 28, 2007, Mr. Stenger filed two discovery motions and two motions to suppress evidence. On March 1, 2007, Mr. Stenger also filed a sealed motion to dismiss the indictment.

On March 5, 2007, a hearing was conducted on...