United States v. Blake

1

UNITED STATES OF AMERICA, Plaintiff, v. AIRRION S. BLAKE, Defendant.

Nos. 2:16-CR-074-JVB-JEM, 2:20-CV-362-JVB

United States District Court, N.D. Indiana, Hammond Division

June 29, 2023

OPINION AND ORDER

JOSEPH S. VAN BOKKELEN, JUDGE UNITED STATES DISTRICT COURT

This matter is before the Court on a Motion Under 28 U.S.C. § 2255^[1][DE 155] filed by Defendant Airrion Blake without counsel, on October 8, 2020. The Government responded on November 6, 2020. Blake filed a reply on January 3, 2022. The Court appointed counsel for Blake on March 29, 2022. Blake, via counsel, filed a supplemental brief on June 22 2022. The Government responded on August 12, 2022, and Blake replied on September 21, 2022. Blake argues that his trial counsel was ineffective during his representation of Blake.

For the reasons below, Blake's motion is denied. The request to litigate without prepayment is moot. Further, the request for an evidentiary hearing is denied, and the Court will issue a certificate of appealability.

BACKGROUND

Blake was charged in a two-count indictment of (1) making a false fictitious, or fraudulent claim and (2) theft of government money. Blake was initially represented by an appointed attorney from the Federal Community Defenders' office. After Blake's arraignment, retained counsel John H. Davis appeared on behalf of Blake, and appointed counsel withdrew.

At trial, which occurred in March 2018, Davis's defense of Blake centered on disputing that Blake had the knowledge necessary to be convicted of the offenses charged. Specifically, the defense was that Blake earnestly believed tax theories, shared on an online Yahoo group. This theory is that the Government sets up a trust for every individual in the amount of their lifetime earnings and that one can access the funds in one's trust by filling out IRS forms in a particular way. Thus, Davis argued under this defense, Blake did not believe he was defrauding the Government but instead believed that he was accessing his own property. At the end of the trial, the jury rendered guilty verdicts on both counts on March 22, 2018.

One week later, Blake filed a pro se motion for new trial in which he argued that Davis provided ineffective assistance. The Court denied that motion on July 22, 2019. Two days later, Blake, represented by new, appointed counsel, was sentenced to 36 months of imprisonment followed by two years of supervised release.

On August 5, 2019, Blake's sentencing counsel filed a notice of appeal. The Seventh Circuit affirmed Blake's sentence and dismissed without prejudice Blake's claim of ineffective assistance of counsel, with the claim being preserved for post-conviction review. United States v Blake, 965 F.3d 554, 561 (7th Cir. 2020).

ANALYSIS

Title 28 section 2255(a) provides that a federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Relief under § 2255 is only appropriate for “an error of law that is jurisdictional constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). Blake argues that he should be granted relief under § 2255 for ineffective assistance of his trial counsel.^[2]

Supreme Court case Strickland v. Washington provides the standard for ineffective assistance of counsel. 466 U.S. 668 (1984). This standard requires that “a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). The two parts of the standard are often called the “performance” prong and the “prejudice” prong.

An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve.

Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).

The performance prong is met if the challenger shows that counsel's representation “fell below an objective standard of reasonableness.” Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). The review of an attorney's performance is highly deferential to mitigate hindsight bias, and the Court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. “The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington, 562 U.S. at 104 (internal quotation marks omitted). The Strickland analysis “calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.” Harris v. United States, 13 F.4th 623, 630 (7th Cir. 2021), reh'g denied (Nov. 10, 2021) (quoting Harrington, 562 U.S. at 110).

The Court “will not presume deficient performance based on a silent record because [the Court] presume[s] counsel made reasonable strategic choices unless the defendant presents evidence rebutting that presumption. United States v. Traeger, 289 F.3d 461, 472 (7th Cir. 2002).

The prejudice prong is met if the challenger shows “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 694).

A. Presumption of Adequate Performance

Blake challenges the adequacy of the representation he received from his trial counsel, John H. Davis. As noted above, caselaw dictates that judicial review of allegations of ineffective assistance of counsel begins with a strong presumption that counsel's actions constituted reasonable professional assistance. Here, though, the Court is presented with a relatively rare situation that requires the Court to more carefully consider whether the presumption is rebutted, is tempered, or remains in full effect.

On December 4, 2017, while Blake's criminal case was pending, the Seventh Circuit issued its decision in Davis v. Anderson, 718 Fed.Appx. 420 (7th Cir. 2017), which contains the following discussion regarding Davis:

Before concluding, we note that Davis's conduct in this litigation raises serious concerns about his professional competence. He repeatedly ignored the judge's simple instructions to file a complaint that complied with the federal rules. Even after the judge all but dictated what it would take to file a competent pleading, Davis returned with another bloated, unintelligible tome. Moreover, he told the judge that he was unable to communicate with his son except for exchanging an occasional greeting over the phone. That gives us reason to doubt whether [Davis's son] Eric even knows about this case, yet Davis named him as a plaintiff and holds himself out as his attorney. Davis's possible failure to communicate with Eric regarding the scope of the purported representation may violate Rule 1.4 of the Indiana Rules of Professional Conduct. And to the extent Eric's interests are not aligned with Davis's interests (or Shelia's [Davis's former wife, who was also a named plaintiff], for that matter), Davis may also be violating Rule 1.7 of the code of conduct.

Id. at 424-25. The court ordered Davis to show cause why he should not be removed or suspended from the practice of law before the Seventh Circuit or otherwise disciplined under Federal Rule of Appellate Procedure 46(b) or (c). Id. at 425.

On May 29, 2018, about two months after Blake's jury trial, the Seventh Circuit Court of Appeals removed Davis from that appellate bar due to “concerns about his professional competence” after receiving Davis's response to the show cause order. In re Davis, No. 17-1732, 2018 WL 11303648, at *1 (7th Cir. May 29, 2018). The court explained, “Davis's unwillingness or inability to respond to our unambiguous concerns about his professional competence-not to mention the concerns of the district judge-plainly establishes that he cannot adequately represent his own interests, let alone those of his clients.” Id. at 2.

Here, the Court considers whether the strong presumption of professional competence is altered by the Seventh Circuit Court's assessment of Davis's professional competence. The initial questioning occurred during the time of Davis's representation of Blake, and Davis's removal from practice before the Seventh Circuit Court of Appeals followed shortly after Davis's representation of Blake concluded on May 23, 2018.

There is no per se rule that an attorney provided ineffective assistance of counsel when that attorney is suspended from the practice of law after trial “due to [their] neglect of other clients' legal matters.” Bond v. United States, 1 F.3d 631, 637 (7th Cir. 1993). “[T]he subsequent disbarment of the counsel for reasons having nothing to do with the instant case [is] irrelevant to [counsel's] performance at petitioner's trial.” United States ex rel. Ortiz v. Sielaff, 542 F.2d 377, 380 (7th Cir. 1976). In Ortiz, the disbarment was “for accepting fees without providing services for other clients” and not connected to the attorney's competence to act as legal counsel. Id.

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