Byron Blake v. United States , 723 F.3d 870 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3183
B YRON B LAKE,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-cv-555-GPM—G. Patrick Murphy, Judge.
A RGUED JANUARY 22, 2013—D ECIDED JULY 25, 2013
Before R IPPLE and R OVNER, Circuit Judges, and B ARKER,
District Judge.Œ
B ARKER, 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 convic-
Œ
The Honorable Sarah Evans Barker, United States District
Court for the Southern District of Indiana, sitting by designation.
2 No. 11-3183
tions and sentence. Blake’s primary legal issue is that
each of his three (actually four) prior attorneys, respec-
tively, subjected him to ineffective assistance during
the various stages of his prosecution and appeal.
Resolving these claims requires a detailed factual ex-
plication, 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 ap-
pearances 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 Illi-
No. 11-3183 3
nois. 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 in-
dictment 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 an-
other 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 suspi-
cion.
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 inter-
view 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
4 No. 11-3183
prior.1 Blake points out that his proffer session occurred
before Mr. Fabbri had conducted a review of the govern-
ment’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 Decem-
ber 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
1
A-02.
No. 11-3183 5
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 repre-
senting 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 gov-
ernment “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 convic-
tion ensued.
The conflict of interest motion filed by the govern-
ment was promptly considered by the district judge at
a hearing convened on December 28, 2006. Prior to ad-
dressing 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.
2
Respondent-Appellee’s App’x at 1.
3
Respondent-Appellee’s App’x at 3.
6 No. 11-3183
Before the motion could be addressed by the court, how-
ever, Mr. Fabbri moved to withdraw as Blake’s counsel,
which request the court granted. Mr. Stenger’s appoint-
ment 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 prepara-
tion 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 involve-
ment by the district court, which led the judge to assume
4
A-56.
No. 11-3183 7
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 gov-
ernment 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.
5
A-2, A-4.
6
A-4.
8 No. 11-3183
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 these
defense motions during which the judge ruled (and in
which order the government acquiesced) that any
evidence supplied by Blake in his proffer to law enforce-
ment agents during the time he was represented by
Mr. Fabbri was to be excluded at trial and not otherwise
used against him. However, the Court refused to bar
the testimony of Blake’s co-defendant or to exclude
any statements made by Blake prior to Mr. Fabbri’s
appearance in the case. On March 20, 2007, Mr. Stenger
moved to continue the March 23rd trial to allow time to
review what he described as voluminous discovery, on
which motion the judge set a hearing for March 23, 2007.
Two days prior to that hearing, on March 21, 2007, the
government filed a superseding indictment against
Blake adding two narcotics-related offenses.
At the March 23rd hearing on Defendant’s motion to
continue the trial, Blake inquired about the impact of the
superseding indictment on his trial date. Ultimately,
Blake wound up withdrawing his consent to his
counsel’s previously requested continuance and waived
the Act’s 30-day allotment of time to prepare for trial on
the two new charges. Blake was arraigned on the new
charges and demanded a jury trial on all counts,
rescinding his prior waiver of a jury. Trial was set for
March 27, 2007 and commenced on that date, and two
No. 11-3183 9
days later, on March 29, 2007, the jury returned verdicts
of guilty on all counts. On July 16, 2007, Blake was sen-
tenced, and his conviction and sentence were affirmed
by our court following his direct appeal. United States
v. Blake, 286 F. App’x 337 (7th Cir. 2008).7
On July 23, 2009, Blake timely filed his § 2255 petition,
claiming that his attorneys were ineffective, more par-
ticularly that: (1) Mr. Fabbri had a clear conflict of
interest based on his status as a target of an ongoing
criminal investigation and that he and the government
improperly hid Mr. Fabbri’s conflict of interest so
they could conspire together to Blake’s disadvantage;
(2) Mr. Stenger improperly failed to move for dismissal
of the charges against Blake based on violations of the
Speedy Trial Act; and (3) Blake’s (two) appellate
counsel were ineffective in failing to raise the viola-
tion of Blake’s Sixth Amendment right to counsel of his
choosing following Mr. Fabbri’s withdrawal and the
district court’s appointment of new counsel. The district
court denied Blake’s § 2255 petition, finding that: (1) while
7
After pleading guilty to an information charging him with
failure to file a currency transaction report, Mr. Fabbri was
convicted and sentenced to eighteen months of incarceration
followed by two years of supervised release, a $40,000 fine,
$36,000 in restitution, and the $100 special assessment. As
previously noted, that case was prosecuted by an AUSA
assigned to and supervised by the U.S. Attorney for the ad-
joining judicial district, the Southern District of Illinois
having been “screened off” from the investigation into
Fabbri’s conduct by the Department of Justice.
10 No. 11-3183
the failure to disclose the conflict of interest was “unfortu-
nate,” it did not adversely affect the outcome of the
trial; (2) several pretrial motions filed by both sides
tolled the time limits of the Act, thereby eliminating
any basis to assert that the Speedy Trial Act was
violated; and (3) Mr. Fabbri’s withdrawal as Blake’s
attorney was proper, given Mr. Fabbri’s conflict of
interest and that, when given the opportunity to waive
the conflict, Blake declined to do so; appellate counsel
was therefore not ineffective in failing to challenge
Mr. Fabbri’s withdrawal.
On July 22, 2011, Blake filed a notice of appeal from
the trial court’s denial of his § 2255 petition and a request
for a Certificate of Appealability (“COA”). The district
court denied Blake’s request on September 26, 2011.
Blake appealed the district court’s denial of the COA to
the Seventh Circuit on October 31, 2011. On February 3,
2012, we granted Blake’s request for a COA, directing
counsel to address Blake’s claims of ineffective assistance
of counsel and his counsels’ handling of his speedy
trial rights.
II. DISCUSSION
Blake’s appeal raises three claims of ineffective
assistance of counsel: first, the ineffective assistance of
his initial attorney (Mr. Fabbri); next, the ineffective
assistance of his trial attorney (Mr. Stenger), who was
appointed to represent Blake after Mr. Fabbri withdrew;
and finally, the ineffective assistance of his third set
of attorneys (Messrs. Blegen and Bradstrader), who
represented him on his direct appeal.
No. 11-3183 11
A. LEGAL STANDARDS GOVERNING INEFFEC-
TIVE ASSISTANCE OF COUNSEL CLAIMS
GENERALLY
Blake’s § 2255 claims are based on the Sixth Amend-
ment. Relief under this statute is available only in extra-
ordinary situations, such as an error of constitutional
or jurisdictional magnitude or where a fundamental
defect has occurred which results in a complete miscar-
riage of justice. Prewitt v. United States, 83 F.3d 812, 816
(7th Cir. 1996); Barnickel v. United States, 113 F.3d 704, 705
(7th Cir. 1997). The Sixth Amendment to the Constitution
provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel
for his defence.” U.S. C ONST . amend. VI. This right to
assistance of counsel encompasses the right to effective
assistance of counsel. Watson v. Anglin, 560 F.3d 687,
690 (7th Cir. 2009) (citations omitted).
A party asserting ineffective assistance of counsel
bears the burden of establishing two elements: (1) that
his trial counsel’s performance fell below objective stan-
dards for reasonably effective representation, and (2) that
counsel’s deficiency prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687-88 (1984); United States v.
Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v.
United States, 574 F.3d 455, 457 (7th Cir. 2009).
To satisfy the first element of the Strickland test,
appellant must direct the Court to specific acts or omis-
sions by his counsel. Wyatt, 574 F.3d at 458 (citation
omitted). In that context, the Court considers whether in
light of all the circumstances counsel’s performance was
12 No. 11-3183
outside the wide range of professionally competent
assistance. Id. The Court’s assessment of counsel’s perfor-
mance is “highly deferential[,] . . . indulg[ing] a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance . . . .”
Strickland, 466 U.S. at 689; accord Wyatt, 574 F.3d at 458.
Further, counsel’s performance is to be evaluated in
light of the discretion properly accorded an attorney to
develop appropriate trial strategies according to the
attorney’s independent judgment, given the facts of
the case, at least some of which may not be reflected in
the trial record. See Strickland, 466 U.S. at 689-690. Courts
are admonished not to become “Monday morning
quarterback[s]” in evaluating counsel’s performance.
Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second Strickland element, appellant
must show that there is a reasonable probability that, but
for counsel’s errors, the result of the proceedings would
have been different, such that the proceedings were
fundamentally unfair or unreliable. Jones, 635 F.3d at 915(citations omitted); Adams v. Bertrand, 453 F.3d 428, 435
(7th Cir. 2006). “A reasonable probability is defined as
one that is sufficient to undermine confidence in an
outcome.” Adams, 453 F.3d at 435 (citing Strickland, 466
U.S. at 694).
An appellate court reviews a district court’s denial of
a § 2255 petition de novo as to issues of law. Galbraith v.
United States, 313 F.3d 1001, 1006 (7th Cir. 2002) (citing
Tezak v. United States, 256 F.3d 702, 712 (7th Cir. 2001)).
Factual findings are reviewed for clear error. Id. Because
No. 11-3183 13
the district court here denied Blake’s § 2255 petition
without conducting an evidentiary hearing, Blake
contends (without citation to any controlling authority)
that his claims should be reviewed for an abuse of dis-
cretion. We do not regard that as a correct statement
of law, so we shall apply the clear error/de novo
principles of review referenced above.
B. INEFFECTIVE ASSISTANCE BASED UPON
ATTORNEY FABBRI’S CONFLICT OF INTEREST
Blake contends that he was deprived of his Sixth Amend-
ment right to effective assistance of counsel due to the
conflict of interest of his initial attorney, Mr. Fabbri, who,
he maintains, was in cahoots with the government in
an effort to gain an advantage in his own prosecution,
rather than to advance only Blake’s interests. Our court
held in Spreitzer v. Peters, 114 F.3d 1435 (7th Cir. 1997) that
the issue of whether an attorney has engaged in a
conflict of interest in representing his client involves both
questions of law and of fact. Id. at 1450. Thus, we apply
a de novo standard of review. Enoch v. Gramley, 70 F.3d
1490, 1496 (7th Cir. 1995) (citation omitted), cert. denied,
519 U.S. 829 (1996).
The Sixth Amendment right to effective assistance of
counsel encompasses “a correlative right to representa-
tion that is free from conflicts of interest.” Wood v. Georgia,
450 U.S. 261, 271 (1981) (citing Cuyler v. Sullivan, 446
U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475, 481
(1978)); accord United States v. Cirrincione, 780 F.2d 620, 624
14 No. 11-3183
(7th Cir.1985) (citations omitted). It is well settled
that “[c]riminal defendants are guaranteed effective
assistance of counsel, and have the right to representa-
tion free from conflict of interest, at all stages of the
proceedings against them.” United States v. Lafuente,
426 F.3d 894, 897 (7th Cir. 2005) (citing Hall v. United
States, 371 F.3d 969, 973 (7th Cir. 2004)).
Two frameworks exist for analyzing ineffective
assistance of counsel claims based on a conflict of interest
by defense counsel. One framework applies if defense
counsel labored under an “actual” conflict of interest.
See Cuyler, 446 U.S. 335. In such a case, “[i]f there
is any ‘adverse effect’ on the attorney’s performance,
prejudice is presumed and the defendant’s argument
prevails.” Freeman v. Chandler, 645 F.3d 863, 869 (7th Cir.
2011) (citing Hall, 371 F.3d at 973). This standard, as set
forth in Cuyler, applies “if the defense counsel was faced
with a choice between advancing his own interests above
those of his client.” Hall, 371 F.3d at 973 (citing Stoia v.
United States, 22 F.3d 766, 771 (7th Cir. 1994)). A petitioner
may show an adverse effect by demonstrating “that
there is a reasonable likelihood that his counsel’s per-
formance would have been different had there been
no conflict of interest.” Hall, 371 F.3d at 974.
Under the second analytical framework where there
has been no “actual” conflict of interest alleged or shown,
a petitioner must establish that the conflict resulted in
ineffective assistance according to the familiar and more
demanding Strickland standard, whereby the petitioner
must demonstrate “that counsel’s representation fell
No. 11-3183 15
below an objectively reasonable standard of care, and
that there is a reasonable probability that but for
counsel’s unprofessional errors the trial outcome would
have been different.” Freeman, 645 F.3d at 869 (citing
Strickland, 466 U.S. at 687, 694).
The government argues here that Mr. Fabbri’s con-
flict was not an actual conflict of interest, based on the
precautions taken in “screening off” AUSA Killian and
the other Southern District of Illinois prosecutors from
Mr. Fabbri’s prosecution.8 Thus, there is no evidence
that Mr. Fabbri’s representation of Blake was incom-
patible with, or influenced by, the investigation into
Mr. Fabbri’s own suspected criminal conduct. Further,
there is no evidence, according to the government, estab-
lishing that Mr. Fabbri was aware that AUSA Killian
was a potential witness in the prosecution against him
(Fabbri), which defeats Blake’s argument that Mr. Fabbri
had an incentive to “curry favor” with the Southern
District of Illinois AUSAs. The district court sidestepped
8
In moving to withdraw, Mr. Fabbri apparently did not
personally believe he had an actual conflict of interest, but
conceded that there was in his continued representation of
Blake an appearance of a conflict. Mr. Fabbri stated at the
hearing, in Blake’s presence: “I believe that there is a potential
for the idea that there could be an understanding by my client,
right or wrong, that there is an appearance that I may act or
react or give advice in confidence to a client based on my
situation. I don’t believe that’s true. I don’t consciously believe
I could do that . . . . But the fact is it’s not what I do, it’s the
appearance of what I do or don’t do.” A-78.
16 No. 11-3183
this issue of whether Mr. Fabbri possessed an actual or
potential conflict, finding it “beside the point,” because
Blake had entirely failed to establish either that his
defense was prejudiced or that Mr. Fabbri’s performance
was adversely affected by the conflict of interest.9
1. Actual Conflict
We are not persuaded, based on the evidence before
us, that Mr. Fabbri possessed an actual conflict of interest
during the two months he represented Blake,1 0 but
9
A-11.
10
As noted above, in its motion seeking a determination
regarding the extent of Mr. Fabbri’s conflict, the government
stated it “believe[d] that Attorney Fabbri has an actual, or at
least a significant potential conflict of interest in representing
Byron Blake.” Respondent-Appellee’s App’x at 1. We do not
view that statement as a concession by the government that
an actual conflict existed. We have previously held that in
cases in which a defendant asserts that an investigation into
the criminal activities of his counsel creates a conflict between
the defendant’s interest in effective representation and the
attorney’s interest in protecting himself from the investigation,
an actual conflict arises “only where there is a danger that
[counsel] would ineffectively represent his client because of
fear that authorities might become aware of the attorney’s
own misconduct if he undertook effective representation.’ ”
United States v. Balzano, 916 F.2d 1273, 1293 (7th Cir. 1990). Here,
the criminal activity for which Mr. Fabbri was being investi-
gated was fully known to the government and wholly
(continued...)
No. 11-3183 17
we concede that the appearance of a conflict of interest
was indeed strong. Even if there were a sound evidentiary
basis on which to base a finding of an actual conflict,
Blake has failed to establish that Mr. Fabbri’s performance
on his behalf was adversely affected by virtue of it, that is,
that Mr. Fabbri’s performance of his duties on behalf
of Blake would have been different, had there been no
conflict.
In his attempt to make the requisite showing under
Cuyler, Blake argues that Mr. Fabbri was trying to curry
favor with the government both when Fabbri advised
Blake to provide a proffer (even before he (Fabbri) had
reviewed all of the discovery in the case) and also
when Fabbri filed the December 15, 2006 motion to con-
tinue. Blake maintains that had Mr. Fabbri not been
conflicted, he would have acted otherwise on those two
occasions. There is simply no evidence to support these
contentions, however, and Blake’s assumptions cannot
support the weight of the claims he advances in this
regard.
(...continued)
unrelated to the charges against Blake. Likewise, Mr. Fabbri’s
case was being investigated by a separate U.S. Attorney’s office
under the direction of the Department of Justice. Thus,
Mr. Fabbri would have had no basis on which to fear that in
representing Blake in a case being prosecuted within the
Southern District of Illinois he would provide the U.S. Attor-
ney’s office in the Central District additional evidence about
his own misconduct, or that he was somehow incented to
pull punches in Blake’s defense.
18 No. 11-3183
The fact that Mr. Fabbri allowed or encouraged Blake
to make a proffer prior to his review of the govern-
ment’s discovery does not, standing alone, raise a red flag
suggestive of a conflict of interest. It is not unusual for
Defendants to seek a strategic advantage in prosecutions
against them by voluntarily providing early proffers,
particularly in cases like this one which involve co-defen-
dants. Any suggestion by Blake that Mr. Fabbri had an
ulterior motive in advising him to make a proffer to
the government is based on nothing more than Blake’s
suppositions.
Similarly, no facts have been adduced to support
Blake’s allegation that the reason Mr. Fabbri sought a
continuance on December 15, 2006 was because he
believed the government wanted him to do so or would
be inclined to view such a maneuver favorably. In his
motion requesting the continuance, Mr. Fabbri cited the
need for more time to review the discovery and repre-
sented that he had discussed with Blake the impact of
requesting additional time. Blake is left only with his
own speculations in arguing that the reason stated
by Mr. Fabbri for requesting the continuance was disin-
genuous. Nor is there any evidence that the govern-
ment either wanted or wished that Mr. Fabbri
would file such a motion. At that early point in the
proceedings—when no more than twenty-four non-
excludable days had passed under the Speedy Trial Act –
the government could easily have asked for the continu-
ance itself, if it chose to do so.
In short, there is no evidence to support Blake’s asser-
tion that Mr. Fabbri “pulled his punches” or acted out of
No. 11-3183 19
“a fear of retaliation” by the government during the
time he was Blake’s counsel and nothing in the record,
based on our own review, gives rise to such an infer-
ence. To the extent that Blake contends that Mr. Fabbri
was incented to cooperate with the government or that
he acted in a manner he would not otherwise have done
to the detriment of Blake’s interests, there simply is no
evidence to support such arguments.1 1
11
Blake also argues that he is entitled to the automatic reversal
of his conviction or a remand for an evidentiary hearing under
Holloway v. Arkansas, 435 U.S. 475, 484-91 (1978), because the
district court knew or should have known about Mr. Fabbri’s
conflict of interest and failed to adequately address it. See
Holleman v. Cotton, 301 F.3d 737, 742 (7th Cir. 2002) (“Under
Holloway and Cuyler, a trial court has the duty to inquire
adequately into a trial counsel’s conflict of interest if it knows
or reasonably should know that a particular conflict exists.”).
However, we have recognized that “[s]ubsequent Supreme
Court decisions have limited the Holloway holding to situa-
tions in which the district court requires joint representation
over a timely objection.” Lafuente, 426 F.3d at 897 (citing Mickens
v. Taylor, 535 U.S. 162, 168-69 (2002); Cuyler, 446 U.S. at 346).
In Blake’s case, Mr. Fabbri’s conflict did not arise from joint
representation. And, in any event, even assuming the Holloway
standard applied here, Blake has failed to show that the
district court failed to adequately investigate a conflict it knew
or reasonably should have known existed.
Blake’s misplaced reliance on Holloway is an outgrowth of his
assertion that the trial judge had actual knowledge of
Mr. Fabbri’s conflict of interest as early as when Mr. Fabbri
(continued...)
20 No. 11-3183
2. Potential Conflict
Nor has Blake satisfied the more demanding Strickland
standards. Under Strickland, we need not dwell on
whether the quality of Mr. Fabbri’s representation was
lacking when measured against an objectively rea-
sonable standard of care. Instead, we shall go directly
(...continued)
first entered his appearance on October 30, 2006, based on a
prior instance in another case before that judge where a
similar charge had been leveled against Mr. Fabbri. However,
the most that can be said in terms of the trial judge’s independ-
ent, prior knowledge of Mr. Fabbri’s possible conflict of
interest was that the prior situation perhaps should have
raised a suspicion in the judge’s mind that Mr. Fabbri might
have a conflict of interest in Blake’s case. Such a suspicion
based on an arguably similar instance of another claim of
conflict of interest against Mr. Fabbri eight months earlier
cannot fairly be regarded as notice to the judge of the conflict
sufficient to require him to take some action to address it,
particularly given that the prior instance was resolved without
the judge ever having to adjudicate the issue and Mr. Fabbri’s
continued involvement as the defense counsel throughout
the entire proceedings. We hold with little difficulty that the
trial judge here did not have knowledge that Mr. Fabbri’s
representation posed any potential or actual conflict of
interest prior to the government’s filing of its notice in
Blake’s case, and once apprised of the potential conflict, the
trial judge inquired in timely fashion. Nothing about this
series of events indicates that the trial judge acted inappro-
priately or with dilatoriness in responding to the alleged
conflict of interest once he had knowledge of it.
No. 11-3183 21
to the issue of whether there was any prejudice suffered
by Blake based on Mr. Fabbri’s performance. In doing
so, we look to determine whether there is a “reasonable
probability that, but for counsel’s unprofessional errors,
the result of the [trial] would have been different.” United
States v. Allen, 390 F.3d 944, 951 (7th Cir. 2004) (quoting
Hough v. Anderson, 272 F.3d 878, 891 (7th Cir. 2001)).
Again, after careful review, we find no find no basis on
which to conclude that, but for the conflict, the outcome
of Blake’s trial would have been different.
Blake attempts to establish prejudice based on his
having provided a proffer to the government during
the time Mr. Fabbri served as his counsel. We have ad-
dressed these facts previously in this opinion. Because
the district court barred any use of the evidence
supplied by Blake in his proffer for any purpose at trial,
any potential prejudice from the proffer was entirely
nullified. Blake has not contended that his proffer was
handled in a procedurally unusual or prejudicial way
by the government causing him some unfairness that
was not cured by the judge’s order in limine. Further,
Blake has not argued that his participation in the
proffer session in and of itself caused him some form
of unspecified prejudice. Accordingly, we find no eviden-
tiary support for Blake’s assertion that his participation
in the proffer session prejudiced him in his defense
or changed the outcome of any proceeding or, in par-
ticular, his trial.
The only other prejudice claimed by Blake was that
the belated disclosure of his attorney’s potential conflict
22 No. 11-3183
caused a delay in his trial. Assuming such a delay, it is
of no legal consequence because Blake’s only entitle-
ment to a particular trial date is his statutory right to a
trial within 70 non-excludable days under the Speedy
Trial Act. When that requirement is satisfied, there is
no other basis on which to find any legally cognizable
prejudice. Further, as we address below in a more com-
prehensive fashion, Blake’s rights under the Speedy
Trial Act were not violated.
It deserves to be noted as well that whatever procedural
delays did occur resulted almost entirely from motions
filed on Blake’s behalf and for his benefit, all (with
the exception of the December 15, 2006 motion to con-
tinue) without objection from him. While it may be true
that pretrial activities did not proceed at a pace fast
enough to suit Blake, there has been no showing of
any prejudice to his defense based on this timetable.
No defendant is entitled by law to any particular trial
date, so long as the Speedy Trial Act requirements
have been met.
Nor do we credit Blake’s attenuated theory that he
was prejudiced by Mr. Fabbri’s belated disclosure of
his conflict of interest, since the delay allowed the gov-
ernment additional time and opportunity to secure a
superseding indictment containing the two additional
felony charges against him. Again, Blake’s argument
is pure speculation because there is no evidence to
indicate that the government could not or would not
have secured the supplemental indictment at some
earlier point in time. In any event, we agree with the
district court’s observation that because the charges in
No. 11-3183 23
both indictments included a conspiracy to distribute
and possess with intent to distribute in excess of 50 grams
of crack cocaine, whether the trial had occurred on
January 9, 2007 or March 27, 2007, the evidence against
Blake would have been the same.1 2 Thus, Mr. Fabbri’s
two month delay in resolving his conflict of interest
did not result in any prejudice to Blake’s defense.
Clearly, the criminal investigation against Mr. Fabbri
and his failure to inform Blake of it at the time Blake
retained him was at the very least problematic, and
perhaps lacking in terms of proper professional practice
standards. It was also, as the trial judge characterized
it, “unfortunate.” However, we find no grounds upon
which to conclude that Mr. Fabbri’s performance on
behalf of Blake was adversely affected by his conflict
of interest or that Blake’s defense was prejudiced,
pursuant to the Strickland standards, as a result of this
conflict. Accordingly, Blake’s claim of ineffective assistance
of counsel claim by Mr. Fabbri is unavailing, and we
affirm the denial of his § 2255 motion on this basis by
the trial court.
C. INEFFECTIVE ASSISTANCE CLAIM AGAINST
ATTORNEY STENGER
Blake claims that his replacement trial attorney,
Mr. Stenger, who was appointed by the court to
represent him when Mr. Fabbri withdrew, was
ineffective based on his (Stenger’s) failure to move
12
A-12.
24 No. 11-3183
for dismissal of the indictment based on violations of
the Speedy Trial Act. The Act provides that a defendant
must go to trial within 70 days of either the date of
the issuance of an indictment or a defendant’s first ap-
pearance before a judicial officer, whichever is later.
18 U.S.C. § 3161(c)(1). If a defendant is not brought to
trial with that 70-day window, the indictment against
the defendant must be dismissed upon the defendant’s
motion. § 3162(a)(2). Dismissal may be with or without
prejudice. Id.
There is a series of statutorily permitted exclusions
from the running of the 70-day clock which reflect Con-
gress’s understanding that a certain amount of sched-
uling flexibility is required by the courts in order to
properly, fairly, and efficiently conduct and complete
pretrial preparations. See § 3161(h)(1)-(8). Periods of
exclusion include “[a]ny period of delay resulting
from other proceedings concerning the defendant, in-
cluding but not limited to . . . delay resulting from
any pretrial motion, from the filing of the motion
through the conclusion of the hearing on, or other
prompt disposition of, such motion . . . .” § 3161(h)(1)(D).
During the period when the events at issue here oc-
curred, time attributable to these purposes was ex-
cluded, some automatically pursuant to the terms of
the Act when no showing of a causal connection
between the delay and the court’s actual consideration
of pretrial motions is required. United States v. Montoya,
827 F.2d 143, 150-51 (7th Cir. 1987). Whether to grant a
continuance along with the related decision(s) of
whether to exclude periods of delay under the Act are
No. 11-3183 25
matters entrusted to the sound discretion of the district
court, and any decision made does not constitute
reversible error absent a showing of abuse of discretion
by the court and of actual prejudice. United States v.
White, 443 F.3d 582, 588-89 (7th Cir. 2006) (citing United
States v. Taylor, 196 F.3d 854, 860 (7th Cir. 1999);
United States v. Marin, 7 F.3d 679, 683 (7th Cir. 1993)).
Blake was arraigned on October 30, 2006 and his trial
began on March 27, 2007. The time that elapsed between
his arraignment and the start of his trial, therefore, ac-
cording to the government’s calculations, totaled
148 days, 85 of which were excludable under the Act,
leaving only 63 as non-excludable days, which, if
properly computed, is well within the 70-day statutory
limit. The government asserts that of the 85 excluded
days, 23 are attributable to the government, 21 are at-
tributable to the district court’s initial order concerning
pretrial motions, and virtually all of the remaining
41 days are attributable to Blake’s motions or the
motions of his counsel filed on his behalf.
The government submitted as a part of its briefing
on appeal the following chart, which details the respec-
tive time allocations and computations pursuant to pro-
visions of the Act. The chart also contains cross-references
to the record, anchoring the time calculations to
events reported on the court’s docket. We reproduce
that chart here for its clarity and, as confirmed by our
review, its accuracy.1 3
13
Brief of Respondent-Appellee at 30 .
26 No. 11-3183
Time Period Source Dates Time
Arraignment to R. 9, R. 109 10-30-06 – 03- 148 days
Trial 27-06
Pretrial Motion R. 12 10-30-06 – 11- -21 days
Period 20-06
Defendant Mo- R. 27, R. 28 12-15-06 – 12- -4 days
tion to Continue 18-06
Government R. 32, R. 36 12-20-06 – -9 days
Motion (Conf. of 12-28-06
Int.)
Defendant Mot. R. 50, R. 55, 12-28-06 – -27 days
for Recons. of R. 57, R. 63 01-24-07
Bond
Government R. 69, R. 71 02-13-07 – -14 days
Speedy Trial 02-26-07
Motion
Defendant Vari- R. 80-86 02-28-07 – -6 days
ous Motions 03-05-07
Defendant Mo- R. 97, R. 104 03-20-07 – -4 days
tion for Continu- 03-23-07
ance
Non- 63 days
excludable
time
Blake disputes various portions of this chart as well as
the government’s computations. However, having failed
to present any Speedy Trial Act claim to the district court
in the form of a motion to dismiss the indictment, he
has waived this claim. The Act expressly provides that
No. 11-3183 27
defendants waive their rights under the Act when
they do not move to dismiss the indictment. 18 U.S.C.
§ 3162(a)(2) (“Failure of the defendant to move for dis-
missal prior to trial . . . shall constitute a waiver of the
right to dismissal under this section.”). Apparently pre-
pared to concede a waiver, Blake resurrects the issue
by blaming his attorney for his ineffectiveness in
failing to raise the Speedy Trial Act violations before the
trial court. However, because Blake fails in his effort
here to demonstrate that the Act was in fact violated,
his counsel cannot be deemed ineffective for having
failed to file a motion to dismiss the indictment on
that basis.
We need not linger on the issue of whether Blake’s
rights under the Act were actually violated. In fact, rather
than focusing on the specific time computations, Blake
limits his § 2255 arguments to a generalized and multi-
faceted attack on the government’s alleged bad faith.
Blake alleges bad faith beginning when AUSA Killian
conspired with Mr. Fabbri to file the December 15, 2006
motion for continuance of the trial and thereafter in
retaliating against Blake for his resistance during the
pretrial hearing to a continuation of his trial date by
getting Mr. Fabbri removed as defense counsel in order
to secure a delay in Blake’s trial thereby allowing addi-
tional charges to be filed against him in the super-
seding indictment. Thus, he argues, beginning with that
first motion raising Mr. Fabbri’s conflict of interest, a
series of events was set into motion that unfairly
delayed his trial and allowed the trial court to disregard
28 No. 11-3183
his rights from the earliest point(s) in this prosecution
forward to its conclusion.1 4
Despite Blake’s stringing together of this series of
procedural occurrences, we do not find in them, whether
considered individually or together, any evidence of
bad faith or of collusion between the government
attorneys and Blake’s initial counsel. These steps simply
track the progress of this prosecution. Blake’s attempt
to assign base motives to each phase of the litigation and
the respective participants does not add up. Further,
our review of the Speedy Trial Act computations confirms
the regularity of the process and of the trial court’s compli-
ance with the Speedy Trial Act, as detailed below:
• The Pretrial Motion Period (the 21-days between
October 30, 2006 and November 20, 2006) was auto-
matically excludable under the holding in
Montoya, 827 F.2d at 151-53.1 5
14
Petitioner-Appellant Brief at 34 .
15
Since the time of Blake’s trial, the Supreme Court in Bloate v.
United States, 559 U.S. 196 (2010) ruled that tolled time in
submitting and processing pre-trial motions is no longer
automatically excludable. Id. at 203-04. However, because the
law was clear at the time of Blake’s trial that the days
required to prepare pretrial motions were automatically
excludable, Mr. Stenger’s performance in failing to move to
dismiss the indictment based on this particular allocation of
time was clearly not deficient. See Knox v. United States, 400
F.3d 519, 522 (7th Cir. 2005) (“A failure to anticipate shifts
(continued...)
No. 11-3183 29
• Defendant’s Motion to Continue is an excludable
pretrial motion, even though Blake did not consent to
its filing. In United States v. Gearhart, 576 F.3d 459, 463
n.3 (7th Cir. 2009), we held that under the Act,
counsel is not required to obtain the defendant’s
consent prior to making a tactical decision in a
case, such as the decision to seek a continuance. (The
excludable period was 4 days: 12/15/06 to 12/18/06.)
• The Government’s motion seeking a determination
of whether Attorney Fabbri had a conflict of
interest was excludable. Although the record reflects
AUSA Killian’s having had limited knowledge
that Mr. Fabbri was under investigation from the
beginning of Blake’s prosecution, when Mr. Fabbri
entered his appearance, he was not aware of a
conflict until December 18, 2006, when he first
learned that an indictment against Mr. Fabbri was
imminent and that Blake wanted to proceed to
trial without delay. At that point, AUSA Killian
promptly withdrew from the case, and replace-
ment AUSAs immediately filed the motion with the
court raising the conflict issue. The government
gained no improper advantage from this delay and
Blake has failed to establish that this motion was
filed in bad faith in an attempt to delay Blake’s trial
(...continued)
in legal doctrine cannot be condemned as objectively defi-
cient.”) (citation omitted).
30 No. 11-3183
or capitalize in some other way on the situation. (The
excludable period was 9 days, running between
12/20/06 to 12/28/06.)
• Defendant’s Motion for Reconsideration of Bond was
an oral motion made by Blake’s new counsel upon
replacing Mr. Fabbri. We agree with our sister
circuits that oral motions toll the clock the same as
written motions for purposes of Speedy Trial Act
calculations. See, e.g., United States v. Broadwater, 151
F.3d 1359, 1361 (11th Cir. 1998) (per curiam); United
States v. Rodriquez, 63 F.3d 1159, 1164-65 (1st Cir.
1995) (citations omitted); United States v. Moses, 15
F.3d 774, 776 n.3 (8th Cir. 1994) (citation omitted);
United States v. Nixon, 779 F.2d 126, 130-31 (2d Cir.
1985). Thus, this period of exclusions was 27 days:
12/28/06 to 01/24/07.
• The Government’s Speedy Trial Motion was filed
on 2/13/07 and was resolved on 2/26/07. The
excludable time for this pretrial motion was 14 days.
• Defendant’s counsel filed various pretrial motions
beginning 2/28/07 through 3/5/07, resulting in 6 days
of excludable time.
• Defendant filed a motion for continuance on 3/20/07
which was pending until 3/23/07, amounting to a
total of 4 excludable days.
Thus, it is clear that the tally of excludable time concluded
with 85 days. The non-excludable time was 63 days. The
total amount of time consumed between the date of
Blake’s indictment and the date of trial was 148 days.
No. 11-3183 31
These calculations clearly comply with the 70-day-to-trial
requirement in the Act.
Blake’s reference to the trial judge’s refusal to make
“ends of justice” findings in response to the government’s
requests on three occasions (December 28, 2006; January 9,
2007; and February 13, 2007) is a red herring; in no way
does it serve as evidence of the government’s bad faith.
The computations under the Act were excludable
whether or not the judge made such a determination, as
shown above, and it is beyond dispute that a judge pos-
sesses broad discretion to make the rulings considered
by him/her to be appropriate under the circumstances
consistent with the Act’s purposes and dictates. The
judge’s refusal to make “ends of justice” findings here
signals nothing with regard to the government attorneys’
bad faith or the reasonableness and sufficiency of
Mr. Stenger’s performance.
A claim of ineffective assistance of counsel must be
supported by objective evidence, not merely by the
movant’s own self-serving testimony. See Cooper v. United
States, 378 F.3d 638, 641-42 (7th Cir. 2004). Here, we have
only Blake’s self-serving claims. No violation of the
Speedy Trial Act occurred in bringing his case to trial,
which defeats Blake’s claim that his counsel was ineffective
in failing to move for dismissal of the indictment.1 6
16
The parties have focused their arguments solely on
whether counsel was ineffective for failing to seek dismissal
based on a violation of Blake’s statutory rights under the
(continued...)
32 No. 11-3183
(...continued)
Speedy Trial Act and have not put forth any constitutional
arguments regarding whether counsel was ineffective for
failing to investigate and pursue a speedy trial claim under
the Sixth Amendment. This is likely because a constitutional
speedy trial violation generally requires a showing of a much
longer period of delay to trigger relief than is at issue here.
“Simply to trigger a [constitutional] speedy trial analysis, an
accused must allege that the interval between accusation
and trial has crossed the threshold dividing ordinary from
‘presumptively prejudicial’ delay . . . .” Doggett v. United
States, 505 U.S. 647, 651-52 (1992) (citing Barker v. Wingo, 407 U.S.
514, 530-31 (1972)). As we have recognized, “[a]s a general
matter, courts have found delays approaching one year to be
presumptively prejudicial.” White, 443 F.3d at 589-90 (citing
United States v. Ward, 211 F.3d 356, 361 (7th Cir. 2000)). The
constitutional right attaches only after an arrest, an indictment,
or some other form of official accusation. United States v.
Souffront, 338 F.3d 809, 835 (7th Cir. 2003) (citations omitted).
Here, Blake was initially indicted on October 19, 2006 and
arraigned on October 30, 2006. A superseding indictment was
returned on March 21, 2007 and Blake’s trial began on March 27,
2007. The approximately five month delay between Blake’s
indictment and trial is therefore plainly not within the range of
delay that we have found to be long enough to warrant a
more in-depth analysis. Compare United States ex rel. Fitzgerald
v. Jordan, 747 F.2d 1120, 1127 (7th Cir. 1984) (finding a pretrial
delay of eight months presumptively prejudicial) with Hogan
v. McBride, 74 F.3d 144, 145 (7th Cir. 1996) (finding that a
pretrial delay of approximately eight months in a robbery
case did not constitute pretrial delay).
No. 11-3183 33
D. INEFFECTIVE ASSISTANCE OF ATTORNEYS
BLEGEN AND BRANDSTRADER
Blake’s final § 2255 claim is that his attorneys on direct
appeal, Messrs. Blegen and Brandstrader, were ineffective
in failing to raise on appeal the deprivation of his Sixth
Amendment right to counsel of his own choosing, based
on the district judge’s allowance of Mr. Fabbri’s motion
to withdraw without first determining whether disqualifi-
cation was warranted and without providing Blake
an opportunity to waive any conflict of interest Fabbri
might have had. In circumstances such as these, where
an ineffective assistance claim is based on an attorney’s
failure to raise a viable issue on appeal, “we must first
analyze the trial court record to determine whether
[the defendant’s] appellate attorney, in fact, ignored
‘significant and obvious’ issues.” Suggs v. United States,
513 F.3d 675, 678 (7th Cir. 2008) (quoting Gray v. Greer,
800 F.2d 644, 646 (7th Cir. 1985)). For an attorney’s per-
formance to be considered ineffective on such grounds,
it must be shown that the neglected issues are “clearly
stronger” than the arguments that actually were raised
on appeal. Suggs, 513 F.3d at 678. No such showing has
been made here; indeed, we believe none could rea-
sonably be made.
Initially, as recognized by the district judge, Blake’s
argument makes no sense given his contemporaneous
contention in this appeal (as well as in his § 2255 petition)
that Mr. Fabbri was ineffective based on a conflict of
interest. In effect, Blake’s argument is that he was
denied the right to choose ineffective counsel. Given the
34 No. 11-3183
obvious weakness of this argument, appellate counsel
could reasonably have believed that it did not warrant
advancement on appeal. See Knox v. United States, 400
F.3d 519, 522 (7th Cir. 2005) (“A lawyer who concentrates
attention on issues that have the best chance of success
does not display objectively deficient performance, and
thus does not render ineffective assistance of counsel.”).
More significantly, contrary to Blake’s contention,
before the district judge granted Mr. Fabbri’s motion and
allowed him to withdraw, he expressly engaged Blake
by providing him with an opportunity to waive
Mr. Fabbri’s alleged conflict of interest, inquiring: “Do
you want [Frank Fabbri] to be your lawyer or not? That’s
what it amounts to.” Blake responded, “I don’t see no
reason why he should. I feel like he is in the same
situation I’m in.” 1 7 In light of the fact that Blake
explicitly refused to waive the conflict and willingly
consented to Mr. Stenger’s appointment as replacement
counsel, it clearly was not unreasonable for Blake’s ap-
pellate counsel to omit this issue on appeal in order to
concentrate on other, stronger arguments. Accordingly,
we affirm the district court’s ruling that Blake has raised
no viable claim that should have been appealed, so that
a failure to do so constitutes the ineffective assistance
of appellate counsel.
17
A-14.
No. 11-3183 35
III. CONCLUSION
As explained above, Blake has failed to establish that
any of his attorneys provided him with ineffective assis-
tance of counsel either during his prosecution or on
appeal. The district court’s denial of his § 2255 motion
is therefore A FFIRMED.
7-25-13