Clark v. United States, Civil No. 15-cv-726-JPG

• Decision Date: 03 March 2016
• Docket Number: Civil No. 15-cv-726-JPG,Criminal No 11-cr-30-2-JPG
• Parties: ERNEST FRANKLIN CLARK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

ERNEST FRANKLIN CLARK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil No. 15-cv-726-JPG

Criminal No 11-cr-30-2-JPG

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

March 3, 2016

MEMORANDUM AND ORDER

This matter comes before the Court on petitionerErnest 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), and2113(d), and use of a firearm in a violent crime, in violation of 18 U.S.C. §§ 2and924(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. 1at 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. 1at 7);

(3) not appealing the "structural error" that resulted from this Court's having conducted certain proceedings in the trial via speakerphone (Doc. 1at 8);

(4) not appealing the "denial of a Fair trial"(Doc. 1at 8-9); (5) failing to "cite the controlling Seventh Circuit precedent in his opening brief"(Doc. 2at 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. 2at 10-16);

b. issuance of a search warrant "founded upon deliberate falsehoods and misleading omissions"(Doc. 2at 16-25);

c. deprivation of due process resulting from errors in the grand jury proceedings (Doc. 2at 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. 2at 32-37);

e. constructive amendment to the Indictment (Doc. 2at 38-45);

f. unreasonable sentence (Doc. 2at 58-59);

g. "lies" of government counsel(Doc. 2at 45-50);

h. failure to promptly present Clark before a magistrate judge (Doc. 2at 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. 8at 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)(quotingBlake 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);seeSandoval v. United States, 574 F.3d 847, 850(7th Cir.2009).

Clark's asserted grounds for relief arise almost exclusively¹ 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)(citingStrickland v. Washington466 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(citingArrington 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(citingStrickland, 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)(citingBrown 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(quotingShaw 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)(quotingLee, 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. 18at 1-6(also raising argument regarding language of § 924(c) counts in Indictment, which charged him with "us[ing] and brandish[ing...