-5-
to the appellate court’s attention, the Court “would almost have
certainly overturned the conviction.” (Pet. at 12.) As we

discussed in a memorandum opinion issued earlier this year denying

Sykes’s motion for this court’s recusal, Sykes v. United States,
No. 12 C 158, 2012 WL 2865475, at *1 (N.D. Ill. July 11, 2012),
Sykes labels our exclusions of time under the Speedy Trial Act as
“collusion” with the government simply because we granted the
government's multiple requests. That is not evidence of
“collusion.” In many criminal cases, the government requests
pretrial exclusions of time under the Speedy Trial Act for various
reasons, and they are often granted. There is no factual support
whatsoever in the record for Sykes’s conclusions that the
government’s requests for exclusions of time had a nefarious
purpose or that this court conspired with the government to deny
Sykes his right to a speedy trial.

Furthermore, there was no reasonable probability that the
outcome of Sykes’s appeal would have been different had the
collusion argument been raised. In regard to our dismissal of the
indictment without prejudice, the Court of Appeals reviewed the
very same record that Sykes argues clearly demonstrates a pattern
of collusion and found in pertinent part:

The judge was entitled to consider Sykes’s outlandish

and disruptive behavior, which posed serious challenges

for the court and was in large part responsible for the

delay in bringing the case to trial. The court also

correctly considered the absence of fault on the part of
the government. And despite Sykes’s argument to the


-8-
would be with or without prejudice. (Pet., Ex. H, Tr. of Dec. L2 5
2007 Hrg. at 17.) And at the outset of the December 20 hearing, we
expressly sought out the views of Sykes and his co-defendant “on
the question of whether the dismissal should be with or without
prejudice.” (Pet., Ex. I, Tr. of Dec. 20, 2007 Hrg. at 3.) Sykes
then presented his argument for a dismissal with prejudice, which
we considered. We ultimately rejected the argument, but we did
consider it. Moreover, the Court of Appeals found that this court
“thoroughly considered and weighed all of the statutory factors, as
required by the statute and controlling caselaw.” 614 F.3d at 310.

Sykes's final argument is that appellate counsel should have
challenged our “shifting of the blame” to Sykes for the pretrial
delays. Appellate counsel did in fact raise this argument, and, as
quoted above, the Court of Appeals held that Sykes was correctly
held responsible for much of the delay because he had repeatedly
advanced frivolous arguments and made it very difficult to handle
the case. Id.

We are not required to hold an evidentiary hearing on a § 2255
motion where, as here, “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief.”

See Olmstead v. United States, 55 F.3d 316, 318 (7th Cir. 1995); 28

U.S.C. § 2255(b). For the foregoing reasons, the motion of Overtis
Sykes to vacate, set aside or correct his sentence pursuant to 28

U.S.C. § 2255 [1] is denied. Because Sykes has not made a


-4-

“The failure of appellate counsel to raise an issue on appeal
requires the court to compare the issue not raised in relation to
the issues that were raised; if the issue that was not raised is
both obvious and clearly stronger than the issues raised, the
appellate counsel’s failure to raise the neglected issue is
objectively deficient.” Lee v. Davis, 328 F.3d 896, 900-01 (7th
Cir. 2003) (internal quotation marks omitted). Under this
comparative standard, appellate counsel is not required to raise
every non-frivolous issue on appeal, Martin, 384 F.3d at 852, and
indeed “may limit appellate arguments to those that in his best
judgment would do more good than harm,” United States v. Knox, 287
F.3d 667, 671 (7th Cir. 2002). “Prejudice is established if the
issue not raised may have resulted in a reversal of the conviction
or an order for a newtrial. This means there must be a reasonable
probability that the issue not raised would have altered the
outcome of the appeal had it been raised.” Lee, 328 F.3d at 901
(citation and internal quotation marks omitted) .

Sykes's first ground for relief is that appellate counsel was
constitutionally ineffective for failing to argue that this court
secretly “colluded” with counsel for the government to deny Sykes
his Speedy Trial rights. Sykes submits that there was a “pattern
of collusion” between the court and the government that is
‘impossible to miss from reading the transcript[s]” of various

hearings held in the case and that if this pattern had been brought


-§<

contrary, the court was also justified in observing that
Sykes did not bring the delay to the court's attention
as the number of nonexcludable days accumulated.
Sykes claims the court was wrong to hold him responsible
for much of the delay. Our review of the record
convinces us otherwise. Sykes repeatedly advanced
frivolous arguments and made the efficient handling of
his case extremely difficult.

614 F.3d at 310 (citations omitted). Appellate counsel did not

render ineffective assistance by forgoing a collusion argument.
Sykes’s second ground for relief has three sub-parts. The

first is that appellate counsel failed to argue that the goverment

“committed fraud upon the court” in the December 20, 2007 dismissal

hearing when counsel represented that the government had never

asked for a continuance of any trial date that had been set. (The
government concedes that this was a misstatement because it had

once requested a short continuance of the trial date on May 2,

2007.) According to Sykes, government counsel also “lied” at the

December hearing by stating that any violations of the Speedy Trial

Act had been unintentional. Sykes’s assertions are without merit.

There is no basis for inferring that counsel's misstatement was

anything more than a misstatement, especially considering the many

hearings that had been held in this case and that counsel was
referring to a continuance that had been requested by another

Assistant United States Attorney. Similarly, Sykes presents no

evidence that the violations of the Speedy Trial Act were

deliberate. But even more significantly, our choice of a dismissal


i) =
substantial showing of the denial of a constitutional right, we
deny a certificate of appealability pursuant to Rule 11(a) of the

Rules Governing Section 2255 Proceedings for the United States

District Courts.

DATE: November 29, 2012

John F/ |JGrady, United States “op Judge



12-158.122 November 29, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

OVERTIS SYKES,
Petitioner,
No. 12 C 158

Vv.

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION

Before the court is Overtis Sykes’s pro se motion to vacate
his sentence pursuant to 28 U.S.C. § 2255. Sykes was indicted on
four counts of bank robbery in violation of 18 U.S.C. § 2113(a). He
exercised his right to self-representation, and we appointed
standby counsel to assist him if he requested. On March 11, 2008
in atrial that Sykes chose not to attend, a jury found him guilty
on all four counts. On June 17, 2008, Sykes was sentenced to a
total term of imprisonment of 240 months, plus an additional 90
days for three findings of contempt of court.

Sykes appealed, with the assistance of counsel, and offered
three reasons for reversal of the convictions: (1) the charges
against him should have been dismissed with prejudice instead of
without prejudice due to a Speedy Trial Act violation; (2) he was

deprived of his Fifth Amendment right to meaningful access to the


af =
without prejudice as the appropriate remedy for the violation of
the Speedy Trial Act was not based on a finding that the government
had never requested a continuance. we found, and the Court of
Appeals agreed, that Sykes was “largely” responsible for the delay
in bringing the case to trial. Id. The Court of Appeals also
specifically noted in its opinion that the government had in early
May 2007 requested a trial continuance pending receipt of
fingerprint evidence. Id. at 307. The Court would not have ruled
differently had counsel argued that the government's statements at
the December 2007 hearing constituted fraud.

we are also unpersuaded by Sykes’s argument that appellate
counsel was ineffective for failing to contend that this court
denied Sykes due process by “predetermining” the outcome of the
December 20, 2007 hearing prior to that dismissal hearing without
considering what Sykes would have to say. Sykes relies upon
statements made by this court at hearings on November 15, 2007 and
December 12, BOOT ». Our statements actually contradict Sykes's
argument because we indicated to counsel that we were not making a
final decision on the issue and would first hear from Sykes
Although we stated that we were strongly inclined to dismiss the
indictment without prejudice, we also stated that we would hear
anything that counsel and defendants had to say to the contrary. At
the close of the December 12 hearing, we also stated that we would

“certainly” hear from Sykes before we decided whether the dismissal


-2-
courts because he had been incarcerated for five weeks prior to
trial in a state prison with no law library; and (3) the court
improperly allowed the jurors free rein to directly question the
witnesses at trial. The Court of Appeals held that we were well
within our discretion to dismiss the charges without prejudice and
that Sykes had not been deprived of his right to access the courts.
The Court also held that while it was error to allow jurors to
directly question the witnesses (and that instead we should have
taken the questions in written form), no improper questions had
been asked, and the jurors’ questions would not have changed the
outcome of the case because the uncontradicted evidence was

overwhelmingly against Sykes. United States v. Sykes, 614 F.3d 303

(7th Civ. 2010).

In his § 2255 petition, Sykes argues that he received
ineffective assistance of appellate counsel because of counsel’s
failure to raise several arguments on appeal: (1) “there existed
collusion between the district judge and the attorney for the
government to circumvent the requirements of the Speedy Trial Act";
(2) the government committed “fraud upon the court” at the December
20, 2007 hearing in order to obtain a dismissal without prejudice;
(3) the court denied Sykes due process by “predetermining the
outcome” of that hearing; and (4) the court “shift[ed] the blame”

to Sykes for excessive delays leading to the dismissal that were


= 3h
actually attributable to the court and the government.’ (Pet. at
2-35)

“Habeas corpus relief under 28 U.S.C. § 2255 is reserved for
extraordinary situations,” where a convicted defendant was
sentenced in violation of the Constitution or laws of the United
States or the sentence was in excess of the maximum authorized by
law or is otherwise subject to collateral attack. Prewitt v.
United States, 83 F.3d 812, 816 (7th Cir. 1996). In order to
obtain relief on a claim of ineffective assistance of counsel, a
petitioner must prove not only that counsel’s performance fell
below an objective standard of reasonableness, but also that “there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

Unsubstantiated and conclusory statements are insufficient to
satisfy a § 2255 petitioner’s burden of persuasion on the two
prongs of the Strickland test. United States v. Turcotte, 405 F.3d
615, 537 (7th Cir. 2005). “There is a strong presumption that
counsel’s performance is reasonable and this presumption has
particular force when the ineffective assistance claim is based
solely on the trial court record.” Martin v. Evans, 384 F.3d 848,

852 (7th Cir. 2004).

¥ Sykes presents two “issues”; the second “issue” encompasses arguments
two, three, and four.