UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

UNITED STATES OF AMERICA 

v. CAUSE NO.: 1:12-CR-82-TLS 

 1:19-CV-363-TLS 

CHRISTIAN D. SHELTON 

OPINION AND ORDER 

 This matter is before the Court on Defendant Christian D. Shelton’s Motion Under 28 

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF 

No. 162], Defendant Shelton’s Letter requesting court appointed counsel [ECF No. 165], and 

Defendant Shelton’s Letter requesting a 30–90 day extension to file documents [ECF No. 166]. 

Based on the Defendant’s filings, the Court concludes that he is able to represent his interests 

and denies his request for appointed counsel. Because the Defendant filed his § 2255 Motion 

outside of the one-year period of limitation and because his arguments are without merit, his 

Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal 

Custody [ECF No. 162] is dismissed. 

BACKGROUND

 On November 28, 2012, the Indictment [ECF No. 1] filed with the Court charged the 

Defendant with knowingly maintaining a place for the purpose of distributing, manufacturing, 

and using a controlled substance in violation of 21 U.S.C. § 856(a)(1) (Count 1); knowingly 

possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) 

(Count 2); and knowingly possessing a firearm while being a person who had been convicted in a 

court of a crime punishable by imprisonment for a term exceeding one year in violation of 18 

U.S.C. §§ 922(g)(1) and 924(e) (Count 3). Indictment, ECF No. 1. On June 4, 2015, the jury 

returned a verdict of guilty on all three counts of the Indictment after a three-day trial. See ECF 

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Nos. 72, 73, 77. On March 23, 2017, the Court sentenced the Defendant to terms of 

imprisonment of one-hundred and eighty months for Count 1, sixty months for Count 2, and onehundred and twenty months for Count 3. See ECF No. 122. The Court ordered that the terms of 

imprisonment for Counts 1 and 3 be served concurrently, while the term of imprisonment for 

Count 2 be served consecutively to the terms for Counts 1 and 3. 

 On March 23, 2017, a Notice of Appeal was filed on behalf of Defendant Shelton. ECF 

No. 125. On March 20, 2018, the United States Court of Appeals for the Seventh Circuit ordered 

a limited remand of the Defendant’s case so the Court could “determine whether it would have 

imposed the same sentence on [the Defendant], knowing it [could] consider the mandatory 

sentence under [18 U.S.C. § 924(c)] in light of [Dean v. United States, 137 S. Ct. 1170 (2017)].” 

United States of America v. Shelton, No. 17-1624 (7th Cir. Mar. 20, 2018), ECF No. 156. On 

March 26, 2018, the Court issued an order explaining that, “even if given an opportunity for 

resentencing, the Court would leave the Defendant’s term of imprisonment unchanged.” Mar. 26, 

2018 Order, ECF No. 157. 

The Court of Appeals affirmed the Judgment on April 10, 2018. United States v. Shelton, 

No. 17-1624 (7th Cir. Apr. 10, 2018), ECF No. 159. On April 26, 2018, the Defendant filed a 

petition for rehearing and a petition for rehearing en banc. See United States v. Shelton, No. 17-

1624 (7th Cir. May 10, 2018), ECF No. 159. The Court of Appeals denied both petitions on May 

10, 2018. Id. The Defendant did not petition the United States Supreme Court to grant a writ of 

certiorari. See Mot. Under 28 U.S.C. § 2255 Vacate, Set Aside, Correct Sentence by Person in 

Fed. Custody ¶ 9(g) (hereinafter § 2255 Mot.), ECF No. 162. Then the Defendant filed a Motion 

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal 

Custody [ECF No. 162]. The Government filed its Response to Motion to Vacate Pursuant to 28 

U.S.C. § 2255 [ECF No. 164]. The Defendant then filed a Letter [ECF No. 165] with the Court 

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requesting that he be appointed counsel. The Defendant filed a second Letter [ECF No. 166] with 

the Court requesting that he be “informed of any order [he] may have from the Court” and to 

“grant extensions of 30–90 days to allow time to properly file and to notify [him] of any 

deadlines [he] may have concerning [his] 2255 appeal.” Def.’s Dec. 13, 2019 Letter, ECF No. 

166. 

ANALYSIS 

 Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, district courts 

must conduct a preliminary review of § 2255 motions. The Rule states in relevant part that “[i]f it 

plainly appears from the motion, any attached exhibits, and the record of the prior proceedings 

that the moving party is not entitled to relief, the judge must dismiss the motion.” Rule 4(b) of 

Rules Governing Section 2255 Proceedings. The Defendant’s § 2255 Motion is untimely and 

does not present a meritorious argument for relief; therefore, the § 2255 Motion is dismissed. 

A. The Defendant’s Motion is Untimely 

The Defendant’s Motion is untimely on its face and, therefore, does not withstand Rule 

4(b) review. 

 Section 2255(f) provides: 

A 1-year period of limitation shall apply to a motion under this section. The 

limitation shall run from the latest of— 

(1) the date on which the judgment of conviction becomes final; 

(2) the date on which the impediment to making a motion created by governmental 

action in violation of the Constitution or laws of the United States is removed, 

if the movant was prevented from making a motion by such governmental 

action; 

(3) the date on which the right asserted was initially recognized by the Supreme 

Court, if that right has been newly recognized by the Supreme Court and made 

retroactively applicable to cases on collateral review; or 

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(4) the date on which the facts supporting the claim or claims presented could have 

been discovered through the exercise of due diligence. 

28 U.S.C. § 2255(f). The Defendant’s § 2255 Motion does not allege that government action 

impeded him from making a motion, that the Supreme Court has recognized a new right and 

made that right retroactively applicable to cases on collateral review, or that new facts supporting 

his claim were discovered. Therefore, the 1-year period of limitation shall run from the date his 

judgment of conviction became final. 

For the purposes of the 1-year period of limitation under 28 U.S.C. § 2255(f)(1), 

[w]hen a defendant in a federal prosecution takes an unsuccessful direct appeal 

from a judgment of conviction, but does not next petition for a writ of certiorari 

from [the Supreme Court] . . . a judgment of conviction becomes final when the 

time expires for filing a petition for certiorari contesting the appellate court’s 

affirmation of the conviction. 

Clay v. United States, 537 U.S. 522, 524–25 (2003); see also United States v. Moore, 282 F. 

App’x 453, 454–55 (7th Cir. 2008). The Court of Appeals affirmed the Defendant’s conviction 

on April 10, 2018, see Shelton, No. 17-1624 (7th Cir. April 10, 2018), and denied a rehearing on 

May 10, 2018, see Shelton, No. 17-1624 (7th Cir. May 10, 2018). “[T]he time to file a petition 

for a writ of certiorari . . . runs from the date of the denial of rehearing,” Sup. Ct. R. 13(3); 

therefore, the Defendant had until August 8, 2018, to petition the Supreme Court to grant a writ 

of certiorari, see Sup. Ct. R. 13(1) (establishing the 90-day time limit to petition the Supreme 

Court for a writ of certiorari).1

Based on the above, the Defendant, as a prisoner acting without an attorney, had until 

August 8, 2019, to deliver his § 2255 Motion to the prison authorities to be forwarded to the 

1

 The Court notes that the Government’s Response to the Defendant’s § 2255 Motion argues that the 

Defendant had until August 7, 2018, to petition the Supreme Court to grant a writ of certiorari. Gov’t 

Resp. 6, ECF No. 164. The Court believes this is a typographical error, as August 8, 2018, is 90 days after 

May 10, 2018. See Sup. Ct. R. 13. 

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clerk of this Court. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (“The 

first day of the 1-year limitation period is the day after the Supreme Court denies certiorari, 

giving defendants until the close of business on the anniversary date of the certiorari denial to 

file their habeas motion.”); Jones v. Bertrand, 171 F.3d 499, 501 (7th Cir. 1999) (“Therefore, for 

the purposes of a prisoner filing a pro se notice of appeal, the Supreme Court adopted a bright 

line test and held that it is timely filed for statute of limitations purposes so long as it is delivered 

to the prison authorities before the 30-day statute of limitations has expired and not when it is 

actually received by the clerk.” (citing Houston v. Lack, 487 U.S. 266, 275–76 (1988))). The 

Defendant declared under penalty of perjury that his Motion was placed in the prison mailing 

system on August 12, 2019. § 2255 Mot. 13. As the Defendant placed his Motion in the prison 

mailing system after the 1-year period of limitation, his Motion is untimely and must be 

dismissed. See Marcello, 212 F.3d at 1010 (affirming the district court’s dismissal of a § 2255 

motion that was filed one day late). 

B. The Defendant’s Motion Fails on the Merits 

Even if the Defendant’s § 2255 Motion were timely, it would fail on the merits. The 

§ 2255 Motion presents five grounds for relief: ineffective trial counsel (Ground One), abuse of 

discretion of the trial court (Ground Two), unconstitutional sentence (Ground Three), 

unconstitutional indictment (Ground Four), and ineffective appeals counsel (Ground Five). The 

Court will address each ground in turn. 

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1. Ineffective Trial Counsel2

It is well established that a defendant claiming ineffective assistance of counsel must 

show that his “‘counsel’s performance was deficient’ and ‘the deficient performance prejudiced 

the defense.’” Bridges v. United States, 991 F.3d 793, 803 (7th Cir. 2021) (quoting Strickland v. 

Washington, 466 U.S. 668, 687 (1984)). That is, the defendant must show “(1) that his trial 

attorney’s performance fell below an objective standard of reasonableness, and (2) that he 

suffered prejudice as a result.” Edmond v. United States, 899 F.3d 446, 452 (7th Cir. 2018) 

(citing Strickland, 466 U.S. at 687–96). To show that an attorney’s performance fell below an 

objective standard of reasonableness, the defendant must “specifically identify acts or omissions 

that form the basis of his claim of ineffective assistance.” United States v. Redd, No. 1:03-CR53, 2007 WL 1724900, at *7 (N.D. Ind. June 11, 2007) (citing Strickland, 466 U.S. at 690). 

Further, a defendant attempting to establish that he has been prejudiced “must show ‘that there is 

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.’” Bridges, 991 F.3d at 808 (quoting Strickland, 466 U.S. at 694). 

Indeed, “[b]ald allegations of prejudice are insufficient to demonstrate ineffective assistance of 

counsel.” Redd, 2007 WL 1724900, at *8 (citing Barkauskas v. Lane, 946 F.2d 1292, 1295 (7th 

Cir. 1991)). If a defendant cannot establish one of the Strickland prongs, the Court need not 

consider the other. Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014). 

The Defendant presents four ways in which he claims his attorney was ineffective: 1) his 

counsel did not notify the Court of false evidence presented to the grand jury, 2) his counsel 

improperly filed a Franks evidentiary hearing and failed to present an offer of proof, 3) his 

2

 On June 1, 2015, after Attorney Anzini’s Motion to Withdraw was denied, Attorney David Joley entered 

an appearance in this matter as co-counsel. See ECF Nos. 65, 68, 70. The addition of Attorney Joley does 

not impact the Court’s analysis.

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counsel did not file for a suppression hearing being fully aware of a tainted search warrant 

affidavit, and 4) his counsel failed to present evidence related to a prior conviction that was used 

to enhance his sentence. 

a. Grand Jury Proceedings 

The Defendant alleges that his counsel failed to notify the Court that false evidence was 

presented to the grand jury. The Defendant does not specify what evidence he alleges to be false 

and does not support his claim with anything suggesting that the grand jury was presented with, 

and relied on, false evidence. The Defendant’s bare assertions of false evidence do not meet 

either prong of Strickland and do not support his ineffective counsel allegations. See Redd, 2007 

WL 1724900, at *8 (“The Defendant’s bare assertions of false testimony do not meet either 

prong of Strickland.”). 

b. Franks Hearing 

Next, the Defendant alleges that his counsel was ineffective because he “improperly filed 

a Franks evidentiary hearing, failed to present offer of proof.” § 2255 Mot. 5. On August 25, 

2014, defense counsel filed a Motion for a Franks Hearing [ECF No. 45] to challenge the 

veracity and sufficiency of the search warrant affidavit. The Court denied the motion. Sept. 17, 

2014 Op. & Order, ECF No. 50. The mere fact that the Court denied the motion is not sufficient 

to demonstrate that counsel was ineffective. Based on the § 2255 Motion, it is unclear whether 

the Defendant is arguing that his counsel was incorrect to file a motion seeking an evidentiary 

hearing or whether the motion itself was somehow deficient. Regardless, the Defendant does not 

demonstrate a reasonable possibility that his motion for an evidentiary hearing would have been 

granted but for the actions and omissions of his attorney. Again, the Defendant’s bare assertions 

do not satisfy either prong of Strickland and do not support his claim of ineffective counsel. 

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c. Suppression Hearing 

The Defendant also alleges that his counsel was ineffective because he “did not file for a 

suppression hear[ing], being fully aware of [a] tainted search warrant affidavit.” § 2255 Mot. 5. 

To the extent the Defendant’s argument refers to the Hartup Affidavit, the Defendant’s attorney 

already presented arguments to the Court in the Motion for a Franks Hearing, and the arguments 

were already considered and denied. The Defendant does not demonstrate why repackaging these 

arguments as a motion to suppress would warrant a different outcome. Failure to raise a losing 

argument does not constitute ineffective assistance of counsel; therefore, defense counsel’s 

refusal or failure to file a motion to suppress does not demonstrate that his services were 

ineffective. See Redd, 2007 WL 1724900, at *7. In any event, the Defendant does not identify 

what evidence his attorney should have sought to suppress and does not demonstrate a 

reasonable possibility that, but for the actions and omissions of his attorney, the evidence would 

have been suppressed. Accordingly, the Defendant has not met his burden under Strickland. 

d. Sentencing Proceedings 

The Defendant alleges that his attorney failed to properly oppose the enhancement to his 

sentence. Based on the entirety of the Defendant’s § 2255 Motion and his previous filings, it 

appears the Defendant is referring to the career offender enhancement. The Defendant contends 

that his attorney was ineffective because he did not present evidence of the Defendant’s prior 

conviction to show that it did not qualify him for the enhancement; however, the Court is unsure 

what evidence the Defendant wanted his attorney to present. Prior to the Defendant’s sentencing, 

the Court was provided with and fully reviewed the Defendant’s criminal history record. See 

Revised Final PSR, ECF No. 108. At that time, the facts were well established, and whether the 

enhancement applied was a matter of law not fact. 

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Additionally, whether the Defendant was a career offender was a significant issue during 

the sentencing process, and the matter was fully briefed. See ECF Nos. 98–100. The Addendum 

to the Final Presentence Investigation Report indicates that “Defense counsel objects to the 

defendant’s classification as a career offender noting it is their position that the convictions cited 

as justification for this classification are not crimes of violence as defined by U.S.S.G. 

§ 4B1.2(a).” Addendum to PSR ¶ I(a), ECF No. 95. The Defendant does not specify how the 

arguments presented by his attorney were improper or incorrect. The Court overruled the 

objection because it was contrary to the law. See ECF Nos. 122, 131. However, lack of success 

alone is not justification for relief. The Defendant’s bare allegations of potential errors are 

insufficient to satisfy Strickland. Accordingly, the Defendant has not demonstrated that he 

received ineffective trial counsel, and his § 2255 Motion is dismissed on Ground 1. 

2. Abuse of Discretion of Trial Court

Second, the Defendant contends that the Court abused its discretion because the “Court 

was aware of [a] conflict between counsel and defendant and refused to appoint new counsel.” 

§ 2255 Mot. 6. Just days before trial was scheduled to begin in this matter, the Defendant 

requested that the Court allow Attorney Anzini to withdraw his appearance. See Mot. to 

Withdraw, ECF No. 65. The Defendant argued that there had been a material breakdown in the 

attorney-client relationship and that a conflict existed stemming from his attorney’s former 

position as an Allen County Prosecuting Attorney in 2003. The Court then held a hearing, where 

the Defendant was permitted to present his concerns to the Court and the Court asked Attorney 

Anzini about his prior position with the prosecutor’s office. After this presentation, the Court 

concluded that the Defendant was receiving effective representation and that there was no 

conflict of interest. 

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Based on the Defendant’s § 2255 Motion, it is unclear whether the Defendant is 

contending that the Court abused its discretion by failing to appoint new counsel due to the 

breakdown in the attorney-client relationship or for the alleged conflict of interest (or both). The 

Defendant did not raise either issue on appeal, and “[a] claim cannot be raised for the first time 

in a § 2255 motion if it could have been raised at trial or on direct appeal.” McCoy v. United 

States, 815 F.3d 292, 295 (7th Cir. 2016) (citing Sandoval v. United States, 574 F.3d 847, 850 

(7th Cir. 2009)). Accordingly, the Defendant cannot obtain § 2255 relief based on this argument. 

Nevertheless, “[c]riminal defendants are guaranteed effective assistance of counsel at all 

stages of the proceedings against them,” and “[t]his right includes the right to ‘representation that 

is free from conflict of interest.’” Hall v. United States, 371 F.3d 969, 973 (7th Cir. 2004) 

(quoting Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th Cir. 1997)). The Court acknowledges that 

ineffective assistance of counsel claims can be raised for the first time in a § 2255 motion, 

Ballinger v. United States, 379 F.3d 427, 429 (7th Cir. 2004), and that an ineffective assistance 

of counsel claim can be based on a conflict of interest by defense counsel, see Blake v. United 

States, 723 F.3d 870, 879–84 (7th Cir. 2013). Because the Defendant’s § 2255 Motion is unclear, 

the Court will consider whether the motion can be maintained in such a manner. 

There are two frameworks “for analyzing ineffective assistance of counsel claims based 

on a conflict of interest by defense counsel.” Id. at 880. “One framework applies if defense 

counsel labored under an ‘actual’ conflict of interest.” Id. “An actual conflict exists when an 

attorney actively represents incompatible interests; it is more than a ‘mere theoretical division of 

loyalties.’” United States v. Fuller, 312 F.3d 287, 291 (7th Cir. 2002) (quoting Mickens v. 

Taylor, 535 U.S. 162, 163 (2002)). When an actual conflict of interest exists, “[i]f there is any 

‘adverse effect’ on the attorney’s performance, prejudice is presumed and the defendant’s 

argument prevails.” Blake, 723 F.3d at 880 (quoting Freeman v. Chandler, 645 F.3d 863, 869 

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(7th Cir. 2011)). A defendant can demonstrate that an adverse effect occurred by showing “that 

there is a reasonable likelihood that his counsel’s performance would have been different had 

there been no conflict of interest.” Id. (quoting Hall, 371 F.3d at 974). If no actual conflict exists, 

a defendant “must establish that the conflict resulted in ineffective assistance according to the . . . 

Strickland standard” set forth above. Id.

In this case, the Defendant has not demonstrated that an actual conflict of interest exists. 

Foremost, the Court has already considered and rejected the Defendant’s arguments concerning 

his attorney’s prior position as an Allen County Prosecuting Attorney and his attenuated 

connection to the Defendant. The Defendant has presented nothing new that would require the 

Court to change its prior decision that there is no conflict of interest. May 27, 2015 Hr’g Tr. 13, 

ECF No. 144. Additionally, the Defendant does not specify the incompatible interests his 

attorney represented or make any effort to demonstrate that his attorney’s performance would 

have been different if no conflict existed. Alternatively, the Defendant has not met the Strickland 

requirement because, as set forth in the previous section, the Defendant has not shown any 

prejudice he suffered based on his counsel’s performance. See Blake, 723 F.3d at 883. 

Accordingly, the Defendant’s contention that the Court abused its discretion is without 

merit, and his § 2255 Motion is dismissed on Ground 2. 

3. Unconstitutional Sentence

Third, the Defendant contends that his sentence is unconstitutional because the robbery 

convictions used to enhance his sentence are not crimes of violence. The Defendant received a 

sentencing enhancement for his status as a career offender. Under the sentencing guidelines, 

A defendant is a career offender if (1) the defendant was at least eighteen years old 

at the time the defendant committed the instant offense of conviction; (2) the instant 

offense of conviction is a felony that is either a crime of violence or a controlled 

substance offense; and (3) the defendant has at least two prior felony convictions 

of either a crime of violence or a controlled substance offense. 

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U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2015). The Court 

determined that the enhancement applied because of his two previous Indiana robbery 

convictions. See PSR ¶¶ 49, 50, 57, 58. 

The Defendant argues that the enhancement was improperly applied because his past 

robbery convictions are not crimes of violence. Specifically, the Defendant argues that “[t]he 

wrong class of robbery was used to enhance. Defendant was actually convicted of a lesser form 

of robbery.” § 2255 Mot. 8. This argument, however, is without merit. 

Under Indiana law, 

[a] person who knowingly or intentionally takes property from another person or 

from the presence of another person: 

(1) by using or threatening the use of force on any person; or 

(2) by putting any person in fear; 

commits robbery, a Class C felony. However, the offense is a Class B felony if it is 

committed while armed with a deadly weapon or results in bodily injury to any 

person other than a defendant, and a Class A felony if it results in serious bodily 

injury to any person other than a defendant. 

Ind. Code § 35-42-5-1 (1977).3

 In United States v. Armour, the Seventh Circuit held that Indiana 

robbery is a crime of violence under the elements clause that triggers the application of the career 

offender enhancement. 840 F.3d 904, 906–07 (7th Cir. 2016). The defendant in Armour argued 

that the district court improperly sentenced him as a career offender because Indiana robbery 

does not qualify as a crime of violence. Id. at 907. The defendant argued that the classification of 

Indiana robbery as a crime of violence was incorrect, as it can be committed by “putting any 

person in fear,” which does not necessarily involve “the use, attempted use, or threatened use of 

3

 The 1977 version of the statute was effective until June 20, 3014; therefore, the Defendant was 

convicted under that version of the statute. 

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physical force against the person of another.” Id. The Seventh Circuit rejected this argument and 

explained 

that the “fear” in the Indiana robbery statute is fear of bodily injury, and Indiana 

courts have interpreted the statute so that “robbery by placing a person in fear of 

bodily injury under Indiana law involves an explicit or implicit threat of physical 

force and therefore qualifies as a violent felony” under the statute. [This] reasoning 

. . . extends to the career offender Guideline here. 

Id. (quoting United States v. Duncan, 833 F.3d 751, 758 (7th Cir. 2016); citing United States v. 

Lewis, 405 F.3d 511, 514 (7th Cir. 2005)). Although the Indiana robbery statute distinguishes 

robbery offenses by severity, the Seventh Circuit in Armour did not address that distinction. See 

id. at 906–07. 

The Defendant was convicted of Class C robbery, which required him to have taken 

property from another or from the presence of another by using of force, by threating the use of 

force, or by putting another person in fear of bodily injury. At the time, this was the least severe 

form of robbery under the Indiana statute. However, as previously explained, Armour does not 

distinguish between the different severity levels. During sentencing, the Court explained that 

“the Seventh Circuit has ruled in the Armour case found at 840 F.3d 904 decided by the Seventh 

Circuit in 2016 that Indiana robbery qualifies as a crime of violence under the elements clause of 

Guideline Section 4B1.2.” Sentencing Tr. 4, ECF No. 131. The Defendant has not demonstrated 

that his offense is not a crime of violence based on Armour. Accordingly, the Defendant’s 

argument is without merit, and his § 2255 Motion is denied on Ground 3. 

4. Unconstitutional Indictment 

 Fourth, the Defendant argues that the Indictment was unconstitutional because “false 

evidence [was] presented to [the] grand jury” and that the false evidence led to his indictment. 

§ 2255 Mot. 9. However, he does not specify what evidence he believes was falsified or what 

was incorrect or misleading about it. Moreover, he does nothing to establish that the evidence 

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influenced the grand jury’s decision to indict. United States v. Vincent, 416 F.3d 593, 600 (7th 

Cir. 2005). Even assuming the Defendant’s contention to be true, his argument is without merit. 

In United States v. Mechanik, the Supreme Court held that any conceivable error caused by a 

violation of Rule 6(d) of the Federal Rules of Criminal Procedure is rendered harmless by a 

jury’s verdict. 475 U.S. 66, 72–73 (1986). The Seventh Circuit has extended this analysis “to 

rules that are designed to prevent the indictment of innocent persons.” Vincent, 416 F.3d at 602 

(citing United States v. Fountain, 840 F.2d 509, 515 (7th Cir. 1988)). This principle applies to 

perjured testimony at grand jury proceedings. Id. (citing United States v. Morgan, 384 F.3d 439, 

443 (7th Cir. 2004)).

In this case, a jury returned a guilty verdict for the Defendant after the conclusion of a 

three-day jury trial. See ECF No. 77. As such, any alleged error that occurred during the grand 

jury proceedings has been rendered harmless, and the Defendant’s argument is without merit. 

For this reason, the Defendant’s § 2255 Motion is denied on Ground 4. 

5. Ineffective Appeals Counsel

Finally, the Defendant argues that his appellate counsel was ineffective because 

“1) counsel failed to raise issues movant asserts in [the] current 2255 appeal,” and “2) counsel 

failed to file cert. regarding direct appeal.” § 2255 Mot. 14. 

A claim of ineffective assistance of appellate counsel is also subject to the Strickland 

analysis. Stallings v. United States, 536 F.3d 624, 627 (7th Cir. 2008). The Court has already 

determined that each of the arguments raised in this § 2255 are without merit. Accordingly, the 

Defendant cannot satisfy the second Strickland prong because he would not have succeeded by 

presenting these arguments and was not prejudiced by his appellate counsel’s decision not to 

bring losing arguments. See Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005); Redd, 

2007 WL 1724900, at *7 (quoting Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996)). 

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Furthermore, the Defendant’s argument that his appellate counsel was ineffective for 

failing to petition for a writ of certiorari is unavailing. “The Supreme Court held in Ross v. 

Moffitt, [417 U.S. 600, 617 (1974)], that a criminal defendant has no constitutional right to 

counsel to pursue a petition for a writ of certiorari. And where there is no constitutional right to 

counsel, there cannot be constitutionally ineffective assistance of counsel.” Wyatt v. United 

States, 574 F.3d 455, 459 (7th Cir. 2009) (citations omitted). Accordingly, the Defendant has not 

shown that his appellate counsel was ineffective, and his § 2255 Motion is denied on Ground 5. 

C. Appointment of Counsel 

The Defendant’s motion is untimely and without merit. As such, the appointment of 

counsel is not necessary, and the Court denies the Defendant’s request to appoint counsel. 

D. Miscellaneous Relief 

In his Second Letter [ECF No. 166], the Defendant requests the Court to grant him 

additional time to make whatever filings the Court requires. The Court needs no additional 

documents from the Defendant; therefore, the request is denied as moot. 

NO CERTIFICATE OF APPEALABILITY 

 The Court must “issue or deny a certificate of appealability when it enters a final order 

adverse to the applicant.” Rule 11 of the Rules Governing Section 2255 Proceedings. A 

certificate of appealability may be issued “only if the applicant has made a substantial showing 

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Rule 11 of the Rules 

Governing Section 2255 Proceedings. The substantial showing standard is met when “reasonable 

jurists could debate whether (or, for that matter, agree that) the petition should have been 

resolved in a different manner or that the issues presented were ‘adequate to deserve 

encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 

Barefoot v. Estelle, 463 U.S. 880, 893, 893 n.4 (1983)). Where, as here, “a plain procedural bar 

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is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 

could not conclude either that the district court erred in dismissing the petition or that the 

petitioner should be allowed to proceed further.” Id. Furthermore, the Court finds that the 

Defendant has failed to show that reasonable jurists could debate whether his Motion presents a 

viable ground for relief. Therefore, the Court will not issue the Defendant a certificate of 

appealability. 

CONCLUSION 

For the reasons stated above, the Court DISMISSES Defendant’s Motion Under 28 

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF 

No. 162], DENIES his request for appointed counsel [ECF No. 165], and DENIES as moot his 

request for a 30–90 day extension to file documents [ECF No. 166]. Further, the Court DENIES 

a Certificate of Appealability. 

SO ORDERED on April 12, 2022. 

 s/ Theresa L. Springmann 

 JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT 

USDC IN/ND case 1:12-cr-00082-TLS-SLC document 198 filed 04/13/22 page 16 of 16