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


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  •                              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
    

Document Info

Docket Number: 11-3183

Citation Numbers: 723 F.3d 870, 2013 U.S. App. LEXIS 15125, 2013 WL 3822417

Judges: Ripple, Rovner, Barker

Filed Date: 7/25/2013

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (37)

Cuyler v. Sullivan , 100 S. Ct. 1708 ( 1980 )

Edward Spreitzer v. Howard A. Peters, Iii, Director, ... , 114 F.3d 1435 ( 1997 )

Roger G. Galbraith v. United States , 313 F.3d 1001 ( 2002 )

united-states-of-america-ex-rel-taylor-fitzgerald-v-james-jordan , 747 F.2d 1120 ( 1984 )

Diane Barnickel v. United States , 113 F.3d 704 ( 1997 )

United States v. Fabian Lafuente , 426 F.3d 894 ( 2005 )

Robert J. Tezak v. United States , 256 F.3d 702 ( 2001 )

United States v. Darrell Levan Moses , 15 F.3d 774 ( 1994 )

United States v. Jorge E. Marin , 7 F.3d 679 ( 1993 )

United States v. Johnny R. White , 12 A.L.R. Fed. 2d 825 ( 2006 )

united-states-v-jose-souffront-also-known-as-bam-bam-jorge-martinez , 338 F.3d 809 ( 2003 )

United States v. Daniel L. Balzano , 916 F.2d 1273 ( 1990 )

United States v. Geraldo Rodriguez, A/K/A Jose Rodriguez , 63 F.3d 1159 ( 1995 )

United States v. Broadwater , 151 F.3d 1359 ( 1998 )

United States v. Gearhart , 576 F.3d 459 ( 2009 )

Kevin L. Hough v. Rondle Anderson , 272 F.3d 878 ( 2001 )

United States v. William Montoya , 827 F.2d 143 ( 1987 )

United States v. Ralph Taylor , 196 F.3d 854 ( 1999 )

Suggs v. United States , 513 F.3d 675 ( 2008 )

Sammy Knox v. United States , 400 F.3d 519 ( 2005 )

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