UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

UNITED STATES OF AMERICA )

)

v. ) CAUSE NO.: 2:00-CR-28-TLS-18

) RELATED CAUSE NO.: 2:09-CV-234-TLS

JAMES S. ERVIN )

OPINION AND ORDER

This matter is before the Court on Defendant James Ervin’s Motion Under 28 U.S.C.

§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No.

1663], filed on August 10, 2009, along with a Memorandum of Law in Support [ECF No. 1664].

The Government filed a Response [ECF No. 1670] on October 8, 2009, and Defendant Ervin

filed a Reply [ECF No. 1671] on October 23, 2009. On March 21, 2011, Defendant Ervin filed

an Amended Memorandum of Law and Motion in Support [ECF No. 1725]. The Government

filed a Response [ECF No. 1738] and Defendant Ervin filed a Reply [ECF No. 1740]. Further, on

August 25, 2011, Defendant Ervin filed a Motion and Affidavit of Fact[s] [ECF No. 1741]

relating to his attempt to obtain trial documents under the Freedom of Information Act.

Defendant Ervin also filed a Submission of Newly Received Exhibits [ECF No. 1746] on

December 15, 2011, and filed a Request for Status and/or Judgment [ECF No. 1757] on

November 13, 2012. 

BACKGROUND

The Court conducted an eighteen day jury trial commencing on October 22, 2003, and

concluding on November 21, 2003, resulting in a jury verdict of guilty for Defendant Ervin.

Specifically, the jury found Defendant Ervin guilty of the following charges contained in the

Government’s Fourth Superceding Indictment [ECF No. 898]: one count of drug conspiracy, in
violation of 21 U.S.C. § 846 (Count 1); one count of drug trafficking, in violation of 21 U.S.C.

§ 841(a)(1) (Count 10); two counts of extortion under color of official right, in violation of 18

U.S.C. § 1951 (Counts 23 and 24); four counts of causing the death of another in relationship to

a drug trafficking offense, in violation of 21 U.S.C. § 848(e)(1)(A) (Counts 25–28); one count of

traveling in interstate commerce with the intent to commit a crime of violence, in violation of 18

U.S.C. § 1952(a)(2) (Count 29); and two counts of carrying a firearm during and in relation to a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). 

Attorney John T. Theis represented Defendant Ervin in pretrial matters, at trial, at

sentencing, and in filing an appeal. Attorney Charles H. Graddick also represented Defendant

Ervin in some pretrial matters. Attorney Jerold S. Solovy represented Defendant Ervin for his

direct appeal to the United States Court of Appeals for the Seventh Circuit.

On December 2, 2005, the Court sentenced Defendant Ervin as laid out in the Judgment

[ECF No. 1471]. Specifically, the Court sentenced Defendant Ervin to life on Counts 1, 10, and

each of Counts 25–28. The Court also sentenced Defendant Ervin to 240 months on Counts 23,

24, and 29, and to 60 months on Counts 30 and 31. The Court ordered that the 240 month

sentences be served concurrently with the life sentence, but that the 60 month sentences be

served concurrently with each other and consecutively to the life sentence. The Court also

sentenced Defendant Ervin to 5 years of supervised release, and ordered him to pay restitution in

the amount of $8,114.39 and a special assessment to the Government in the amount of $1,100.00. 

Defendant Ervin appealed his conviction, and the Seventh Circuit affirmed the conviction

(along with the conviction of co-Defendant Jay Zambrana) on September 2, 2008. United States

v. Ervin, 540 F.3d 623 (7th Cir. 2008); see also Judgment, ECF No. 1657. 

2
Defendant Ervin now seeks to vacate, set aside, or correct his sentence on the basis of

ineffective assistance of counsel and improper jury instruction. The Government, in its

Responses, argues that Defendant Ervin’s claims provide no basis for collateral relief because

they do not amount to ineffective assistance of counsel and because the Court gave appropriate

instructions of law. The Court agrees that Defendant Ervin’s claims do not entitle him to

collateral relief.

ANALYSIS

Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct

his sentence. This relief is available only in limited circumstances, such as where an error is

jurisdictional, of Constitutional magnitude, or there has been a “complete miscarriage of justice.”

See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). Motions to vacate a conviction or

correct a sentence ask a court to grant an extraordinary remedy to a person who has already had

an opportunity of full process. Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006). 

The Seventh Circuit “requires a district court to grant an evidentiary hearing if a § 2255

petitioner ‘alleges facts that, if proven would entitle him to relief.’” Galbraith v. United States,

313 F.3d 1001, 1009 (7th Cir. 2002) (quoting Stoia v. United States, 22 F.3d 766, 768 (7th Cir.

1994)). However, “the threshold determination that the petitioner has sufficiently alleged such

facts requires the petitioner to submit a sworn affidavit showing what specific facts support the

petitioner’s assertions.” Id. (citing Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996)). 

3
Defendant Ervin asserts that he is entitled to habeas relief on nine grounds1

: First, he

maintains that his trial counsel was ineffective in not moving for a severance from co-Defendant

Zambrana before trial. Second, Defendant Ervin argues that his counsel was ineffective in not

filing a motion for an evidentiary hearing after receiving notice of Defendant Arreola’s

additional misconduct prior to Defendant Ervin’s sentencing in this matter. Third, Defendant

Ervin states that his trial counsel was ineffective when he failed to object to the Court’s final jury

instructions, which did not include a definition of the term impeachment. Fourth, Defendant

Ervin argues that his counsel was ineffective when he failed to develop and present adequate

grounds and authority for the relief requested in his Motion for Judgment of Acquittal or in the

Alternative for a New Trial [ECF No. 1363]. Fifth, Defendant Ervin maintains his trial counsel

was ineffective for failing to develop adequate grounds to challenge the racial makeup of the

jury pool in the Motion for Judgment of Acquittal or in the Alternative for a New Trial. Sixth,

Defendant Ervin argues that the Court erred when it did not instruct the jury to disregard the

testimony of impeached witnesses. Seventh, Defendant Ervin states that his appellate counsel

was ineffective when he failed to object to the Seventh Circuit’s finding that additional evidence

about Defendant Arreola’s misconduct would constitute only “cumulative impeachment

evidence.” 

1

Defendant Ervin also states that the evidence against him was insufficient to result in a

conviction, though he does not list insufficiency of the evidence as an independent ground for habeas

relief. (See Pet’r’s Reply 1–5, 12, ECF No. 1671; Reply to Amendment Resp. 11, ECF No. 1740 (“The

question now before this Honorable Court, is it alright to have these characteristics in a Chief Witness

when no other evidence of the charges, so long as it benefits the Government?”).) The Court previously

denied Defendant Ervin’s sufficiency of the evidence claim as part of its Opinion and Order denying his

Motion for Judgment of Acquittal or In the Alternative for a New Trial, entered on July 25, 2005. (See

Op. & Order 4–5, ECF No. 1408.) Because Defendant Ervin raises no new circumstances or evidence to

support his references to a sufficiency claim, the Court will deny habeas relief on what is, in essence, a

sufficiency claim, insofar as Defendant Ervin is making such a claim. 

4
In Defendant Ervin’s eighth ground for habeas relief—the first of Defendant Ervin’s new

claims added by way of amendment—he argues that he has recently discovered that his trial

counsel was ineffective when he failed to even contact alibi witnesses of whom Defendant Ervin

had informed him. Finally, in his ninth ground for relief, also added in his request to amend his

§ 2255 Motion, Defendant Ervin maintains that his trial counsel was ineffective in failing to call

an additional witness at trial, and for failing to develop potentially exculpatory evidence relating

to that witness. 

The Government argues in its Response that Defendant Ervin’s claims of ineffective

assistance of counsel do not meet the standard for ineffectiveness required by Strickland v.

Washington, 466 U.S. 668 (1984). The Government also argues that his claim that the Court

erred at trial is procedurally barred because it was not raised on direct appeal. 

The Court notes that Defendant Ervin also requests an evidentiary hearing. However, he

has not submitted a sworn affidavit as part of his § 2255 filings, and therefore he has not

produced admissible evidence requiring a hearing on any of his claims. See Galbraith, 313 F.3d

at 1009–10 (“factual allegations must be supported by an affidavit before we will require the

additional step of an evidentiary hearing”). Accordingly, the Court will deny Defendant Ervin’s

request for an evidentiary hearing. 

A. Legal Standard—Ineffective Assistance of Counsel Claims

In seeking to prove that his counsel rendered ineffective assistance, the Defendant “bears

a heavy burden.” Jones v. Page, 76 F.3d 831, 840 (7th Cir. 1996) (citation omitted). To establish

ineffective assistance of counsel, a petitioner must show that: (1) his attorney’s performance “fell

5
below an objective standard of reasonableness,” Strickland, 466 U.S. at 688; and (2) there is a

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

would have been different.” Id. at 694. “A failure to establish either prong results in a denial of

the ineffective assistance of counsel claim.” Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir.

2002) (citation omitted). 

The performance prong requires the defendant to specifically identify acts or omissions

that form the basis of his claim of ineffective assistance. Strickland, 466 U.S. at 690. Based on

the totality of the circumstances, the court must then determine whether the identified acts and

omissions fall outside the range of professionally competent assistance. Id. The prejudice prong

requires the defendant to show that his trial counsel’s errors are so serious as to render his trial

fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 368–69 (1993). No

matter how many grounds of ineffective assistance of counsel are raised, “ineffective assistance

of counsel is a single ground for relief. . . . [I]t is the overall deficient performance, rather than a

specific failing, that constitutes the ground of relief.” Peoples v. United States, 403 F.3d 844,

848 (7th Cir. 2005). “Failure to raise a losing argument, whether at trial or on appeal, does not

constitute ineffective assistance of counsel.” Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996). 

B. Claims in the Original § 2255 Motion

1. Claimed Ineffective Assistance for Failing to Move for a Severance of the Trial

In his first ground for habeas relief, Defendant Ervin argues that his counsel was

6
ineffective because before trial began2

 he did not move for a severance of Defendant Ervin’s trial

from the trial of his co-Defendant, Jay Zambrana. Defendant Ervin maintains that “[t]he vast

bulk of the Government’s 57 witnesses were against the co-defendant” (Mem. of Law in Supp. 6,

ECF No. 1664), and argues that the Court’s spillover instruction was an “insufficient remedy”

(id.) due to the sheer number of charges and amount of evidence offered against co-Defendant

Zambrana. Because his counsel did not move for a severance before trial, Defendant Ervin

insists he was denied “a better opportunity for acquittal” as well as “a fair trial.” (Id. 5.) The

Government responds that Defendant Ervin’s counsel could not have obtained severance under

Federal Rule of Criminal Procedure 14(a) because the indictment appropriately joined

Defendants Zambrana and Ervin under Rule 8(b). The Government responds, further, that the

Seventh Circuit has already evaluated the spillover instruction the Court gave at Defendant

Ervin’s trial and found it sufficient to ensure that the jury “consider[ed] each count and the

evidence relating to it separate and apart from every other count.” Ervin, 540 F.3d at 630.

Because a motion for severance would have been without merit, the Government argues

Defendant Ervin was not deprived of effective assistance of counsel when his attorney declined

to make such a motion. Defendant Ervin replies that denial of severance from co-Defendant

Zambrana would have been a due process violation in that it would have denied him a fair trial. 

Federal Rule of Criminal Procedure 8(b) states that an “indictment or information may

charge 2 or more defendants if they are alleged to have participated in the same act or

transaction, or in the same series of acts or transactions, constituting an offense or offenses.” The

2

Counsel for Defendant Ervin did move for a severance during trial, and the Court denied that

request. (See Mot. for Judgment of Acquittal or in the Alternative for a New Trial 5, ECF No. 1363.) 

7
Seventh Circuit has observed that it is “well settled that co-conspirators who are charged

together generally should be tried together.” United States v. Goodwin, 496. F.3d 636, 644 (7th

Cir. 2007). 

Federal Rule of Criminal Procedure 14(a) allows a court to grant a request for severance

where “the joinder of offenses or defendants in an indictment . . . appears to prejudice a

defendant.” Defendants are not, however, “entitled to severance merely because they may have a

better chance of acquittal in separate trials.” Zafiro v. United States, 506 U.S. 534, 540 (1993).

“In all but the most unusual circumstances, the risk of prejudice arising from a joint trial is

outweighed by the economies of a single trial in which all facets of the crime can be explored

once and for all.” United States v. Carrillo, 435 F.3d 767, 778 (7th Cir. 2006) (quotation marks

omitted). “[W]hen defendants properly have been joined under Rule 8(b), a district court should

grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise

a specific trial right of one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” Zafiro, 506 U.S. at 539. 

The Court agrees with the Government that Defendant Ervin has failed to show why

severance from co-Defendant Zambrana would have been appropriate if his attorney had asked

for it before trial. It is undisputed that Defendant Ervin and Defendant Zambrana were charged

together as co-conspirators. Thus, indicting them together was proper under Rule 8(b), and trying

them together was also proper. See Goodwin, 496 F.3d at 644. Finding that the Defendants were

properly joined, the Court would only have granted a request for severance if a joint trial would

have compromised a specific trial right of either Defendant Zambrana or Defendant Ervin, or

would have prevented the jury from reaching a reliable verdict. But Defendant Ervin’s general

8
assertion that he was denied a fair trial under the due process clause does not substantiate his

claim that he was denied a specific trial right. Nor does the Court find that trial of the Defendants

together prevented the jury from reaching a reliable verdict. Indeed, as the Seventh Circuit noted

in its denial of Defendant Ervin’s direct appeal, the Court instructed the jury to “consider each

count and the evidence relating to it separate and apart from every other count.” The Seventh

Circuit approved of this very instruction on direct appeal, finding that “nothing in the record”

suggested that the jury disregarded this Court’s instruction. Ervin, 540 F.3d at 630. Defendant

Ervin raises no new evidence that would suggest the jury failed to follow this instruction. His

assertion that the Court’s spillover instruction was an “insufficient remedy” is not supported by

the record in this case. 

Because Defendant Ervin cannot show that the Court would have entertained his motion

to sever if it had been offered before trial, he cannot show that his counsel was ineffective for

failing to make such a motion. See Stone, 86 F.3d at 717 (“Failure to raise a losing argument

. . . does not constitute ineffective assistance of counsel.”). Defendant Ervin has not shown that

failing to make a motion for a severance was objectively unreasonable, nor that such a motion, if

offered, would likely have affected the outcome of the proceeding. Accordingly, because

Defendant Ervin has not shown ineffective assistance of counsel, the Court will deny his first

ground for habeas relief. 

2. Claimed Ineffective Assistance for Failing to Request an Evidentiary Hearing

In his second ground for habeas relief, Defendant Ervin argues that his counsel was

ineffective because he did not request an evidentiary hearing when informed about additional

9
misconduct by Defendant Arreola, one of the chief cooperating witnesses who testified against

Defendant Ervin at trial. Instead of moving for an evidentiary hearing, Defendant Ervin’s

counsel filed a Motion for Judgment of Acquittal or in the Alternative for a New Trial [ECF No.

1363]. Notably, Defendant Zambrana’s attorney moved for both an evidentiary hearing and a

new trial. After a two-day evidentiary hearing and after considering the testimony of all nine

witnesses called, the Court denied Defendant Zambrana’s motion for a new trial in spite of the

evidentiary hearing. The Court also denied Defendant Ervin’s motion for a new trial. Defendant

Ervin maintains that his counsel’s failure to move for an evidentiary hearing as part of the

motion for a new trial was ineffective. Specifically, he argues that this failure deprived him of

“the opportunity to question the witness on the misconduct that may have adversely affected his

testimony against the petitioner at trial.” (Mem. of Law in Supp. 10.) He argues this violated his

“right to due process interlinked with his right of confrontation.” (Id. 11.) The Government

responds that the Seventh Circuit has already found Defendant Ervin’s “substantive arguments”

in support of his motion for a new trial to be “meritless.” Ervin, 540 F.3d at 631. Therefore, the

Government argues that Defendant Ervin fails to establish either the first or the second prongs of

a Strickland ineffectiveness claim. Furthermore, the Government notes that Defendant Ervin has

failed to state what witnesses his counsel should have called at such a hearing, or what those

witnesses would have said that would have produced a different result at the hearing. In his

Reply, Defendant Ervin lists the names of three witnesses who he describes as “unimpeached

alibi witnesses.” (Pet’r’s Reply 9.) He suggests that his attorney did not depose these three

witnesses, but that if called at an evidentiary hearing on his motion for a new trial they “would

have removed the specter of guilt against the petitioner.” (Id.) 

10
The Court finds that the Seventh Circuit has already addressed the merits of Defendant

Ervin’s new trial claim and found it to be “meritless.” Ervin, 540 F.3d at 631. Defendant Ervin

has not shown that his counsel’s decision to proceed directly to arguing the merits of his new

trial claim was objectively unreasonable. Furthermore, Defendant Zambrana did request an

evidentiary hearing on his new trial request and the Court, after the hearing, denied the request

for a new trial. The Court understands Defendant Ervin’s argument that his interests are not

contiguous with Defendant Zambrana’s interests. However, the Court agrees with the

Government that Defendant Ervin has failed to show exactly who his attorney ought to have

called at an evidentiary hearing on the motion for a new trial, and how any witness would have

made a difference. Defendant Ervin does not in this claim set out the testimony that any of his

three alleged alibi witnesses would have offered, nor does he show that they could have affected

the outcome on his motion for a new trial. As the Seventh Circuit has stated: “[E]vidence about

the testimony of a putative witness must generally be presented in the form of actual testimony

by the witness or on affidavit. A defendant cannot simply state that the testimony would have

been favorable; self-serving speculation will not sustain an ineffective assistance claim.” United

States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (footnote omitted). In this ground for habeas

relief, Defendant Ervin offers nothing more than self-serving speculation that the testimony of

these witnesses would have been favorable. Such an unsubstantiated claim about the need for an

evidentiary hearing does not establish ineffective assistance of counsel. 

In sum, the Court finds that the denial of Defendant Zambrana’s motion for a new trial

after a hearing, the Seventh Circuit’s finding that Defendant Ervin’s arguments in support of a

11
new trial were meritless,3

 and Defendant Ervin’s failure to show what his proposed witnesses

would have said and how it would have affected the outcome of his motion for a new trial,

suggest that Defendant Ervin was not prejudiced when his attorney did not move for an

evidentiary hearing in conjunction with his motion for a new trial. Because it appears that

Defendant Ervin’s attorney did not act objectively unreasonably, and because Defendant Ervin

has not established prejudice as a result of his attorney’s decision, he has not established

ineffective assistance of counsel, and the Court will deny relief on this ground. 

3. Claims Relating to Failure to Instruct the Jury on Impeachment

In his third, sixth, and seventh grounds for habeas relief, Defendant Ervin raises claims

having to do with impeachment. He notes that on direct appeal the Seventh Circuit described the

testimony of the three chief witnesses against him at trial as having been “thoroughly

impeached.” He then raises the following arguments on the subject of impeachment and jury

instructions. 

In his third ground for relief, Defendant Ervin claims his attorney was ineffective when

he failed to object to the Court’s instructions, which did not include a definition of impeachment.

In his sixth ground for relief, Defendant Ervin claims the Court erred when it failed to instruct

the jury “to disregard any and all facts pertaining to” impeached Government witnesses. (Mem.

3

As the Seventh Circuit stated, Defendant Ervin’s arguments in support of his new trial motion

were “meritless” because the new evidence Defendant Ervin wished to introduce was merely impeaching

and was cumulative, because no evidence suggested that witnesses against Defendant Ervin actually

coordinated testimony, because no evidence suggested that Government agents actually suppressed the

evidence of misconduct, and because the cumulative impeachment evidence would not have violated

Brady v. Maryland, 373 U.S. 83 (1963), even if Government agents had actually suppressed it. See Ervin,

540 F.3d at 631–32. 

12
of Law in Supp. 20.) In his seventh ground for relief, Defendant Ervin claims his appellate

counsel was ineffective when he failed to object to the Seventh Circuit’s statement that the

testimony he might have elicited from Defendant Arreola was “merely cumulative impeachment

evidence.” He appears to claim in his seventh ground that his appellate counsel was ineffective

for failing to note that impeachment evidence “is inadmissible by law.” (Id. 22.) 

The Government responds regarding Defendant Ervin’s ground three that the Court

correctly instructed the jury on impeachment, specifically giving the Seventh Circuit Criminal

Pattern Jury Instructions on testimony of a witness (deciding what to believe), on prior

inconsistent statements, on impeachment of witnesses by prior convictions, on witnesses

requiring special caution because of cooperation with the Government, and on how to consider

testimony by witnesses who had used addictive drugs. The Government responds regarding

Defendant Ervin’s ground six that his argument is procedurally barred because it was not raised

on direct appeal, and that it fails on the merits because Defendant Ervin’s requested instruction is

an incorrect statement of the law. The Government responds regarding Defendant Ervin’s ground

seven that it is “at a complete loss in its attempt to discern the basis of Ervin’s claim” (Response

34, ECF No. 1670) and that in any case Defendant Ervin’s seventh ground fails to show

ineffective assistance of counsel. Defendant Ervin replies as to his third ground that the Court’s

failure to instruct on the definition of the word impeachment justifies both an evidentiary

hearing4

 and habeas relief. Defendant Ervin appears to reply concerning his sixth and seventh

grounds that he is conceding these grounds (Pet’r’s Reply 17); nevertheless, because his

4

As to his request for an evidentiary hearing, it is denied because he has not submitted an affidavit

with evidence showing why such a hearing is necessary. See Galbraith, 313 F.3d at 1009–10. 

13
concession of these grounds is less than clear, the Court will consider them.

The Court notes as an initial matter that Defendant Ervin’s sixth ground is procedurally

barred because he did not raise it on direct appeal. It does not appear to raise a constitutional

claim. Accordingly, because it could have been raised on direct appeal and was not raised, it

cannot be heard in a § 2255 motion. See Belford v. United States, 975 F.2d 310, 313 (7th Cir.

1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 720 (7th Cir.

1994). On this basis, the Court will deny Defendant Ervin’s sixth ground for habeas relief. 

Furthermore, the Court will deny Defendant Ervin’s third, sixth, and seventh grounds for

habeas relief on the merits. In his third ground, he argues merely that his attorney should have

objected to the Court’s instructions which did not specifically define the word impeachment. But

in his sixth and seventh grounds, Defendant Ervin appears to argue that the Court should have

instructed the jury to completely disregard the testimony of the Government’s witnesses who

were impeached. As to his third ground, the Court finds that the Court appropriately instructed

the jury in accordance with the Seventh Circuit Criminal Pattern Jury Instructions. The Court

instructed the jury on what it could consider in evaluating the testimony of any witness, and gave

instructions on how to evaluate prior inconsistent statements, prior convictions, witness

cooperation with the Government, and previous use of addictive drugs. The Court finds that

Defendant Ervin has presented no authority or evidence to show why a definition of the word

impeachment would have been appropriate or necessary, and accordingly, the Court finds that

his attorney’s failure to object to the Court’s jury instructions as stated in his third ground for

habeas relief did not constitute ineffective assistance of counsel. As to Defendant Ervin’s

suggestion in his sixth and seventh grounds that the Court should have instructed the jury to

14
disregard the testimony of witnesses who were impeached, the Court agrees with the

Government that Defendant Ervin is simply misstating the law. The Court will therefore deny

Defendant Ervin’s sixth ground for relief on its merits because he has not shown that the Court’s

instructions were improper, and will deny Defendant Ervin’s seventh ground for relief on its

merits because he has not shown how his appellate counsel was ineffective for failing to object

to the Seventh Circuit’s statement that any additional evidence offered by Defendant Arreola

would have been “merely cumulative impeachment evidence.” Defendant Ervin’s statement that

“impeached witnesses testimonial evidence . . . is inadmissible by law” (Mem. of Law in Supp.

22) is simply incorrect, and if his attorney had raised such an objection on direct appeal, it would

have failed. Thus, failure to raise such objection did not constitute ineffective assistance of

counsel. See Stone, 86 F.3d at 717 (“Failure to raise a losing argument, whether at trial or on

appeal, does not constitute ineffective assistance of counsel.”). 

For all the reasons stated above, the Court will deny habeas relief as to the claims stated

in Defendant Ervin’s third, sixth, and seventh grounds. 

4. Claims Relating to the Motion for Judgment of Acquittal or in the Alternative for a

New Trial [ECF No. 1363]

In his fourth and fifth grounds for habeas relief, Defendant Ervin argues that his counsel

was ineffective when he failed to adequately support the arguments raised in the Motion for

Judgment of Acquittal or in the Alternative for a New Trial [ECF No. 1363]. Specifically,

Defendant Ervin argues in his fourth ground that his counsel was ineffective for failing to

support and develop arguments in the Motion in general, and argues in his fifth ground that his

counsel was ineffective for failing to support and develop the claim relating to the jury pool,

15
contained in the same Motion. Defendant Ervin’s fifth ground also argues that his counsel was

ineffective for failing to support and develop the jury pool claim at trial, and for failing to object

to the transfer of his case from the Hammond Division to the Fort Wayne Division. 

Defendant Ervin’s counsel filed the Motion for Judgment of Acquittal or in the

Alternative for a New Trial on September 17, 2004. In that Motion, Attorney Theis argued that

the evidence at trial was insufficient to convict Defendant Ervin, and raised twenty specific

alleged errors at trial which, he argued, militated for a new trial. In its Opinion and Order

denying the Motion, the Court stated as follows:

It is the movant’s responsibility to develop his arguments and present the court with

adequate grounds and authority to grant the requested relief. . . . This Court will not

shy from summarily dismissing allegations of error where a party has presented

perfunctory and undeveloped arguments unsupported by pertinent authority. 

(Op. & Order 3–4, ECF No. 1408.) 

The Government argues in response to Defendant Ervin’s fourth ground for relief that he

has failed to indicate what arguments or evidence counsel for Defendant Ervin should have

raised in the Motion, or how any additional arguments or evidence would have affected the

outcome of the Motion. The Government argues in response to Defendant Ervin’s fifth ground

that Defendant Ervin has still failed to show that African-Americans were under-represented in

the jury venire based on the racial makeup of the Fort Wayne Division. As to Defendant Ervin’s

claim that his attorney should have objected to transfer from the Hammond Division, the

Government argues Defendant Ervin requested a judicial recusal which led directly to the

transfer, and that Attorney Theis’s strategic decision to request recusal did not constitute

ineffective assistance of counsel. Defendant Ervin replies concerning ground four that this

Court’s statements in its Opinion and Order indicate that Attorney Theis was ineffective in filing

16
the Motion for Judgment of Acquittal or in the Alternative for a New Trial without appropriate

research and argument. Defendant Ervin replies concerning ground five that he has stated claims

for purposeful discrimination and an equal protection violation by his showing that only two

African-Americans were part of the venire for his trial. 

The Court finds that neither Defendant Ervin’s ground four nor his ground five raise

claims meriting habeas relief. As to ground four, the Court agrees with the Government that

Defendant Ervin has not shown how his attorney was ineffective in filing the Motion for

Judgment of Acquittal or in the Alternative for a New Trial. Nowhere in his ground four does

Defendant Ervin state what evidence or caselaw his attorney should have produced, nor what

arguments his attorney should have made. Neither does Defendant Ervin state how this new

evidence or argument would have made a difference in the Court’s ruling on the Motion. His

argument appears to be that his attorney was ineffective because the Government was allowed to

respond to the substance of the Motion; that is no argument at all, for the Government would

have had an opportunity to respond to his Motion whether it was a well-supported motion or not.

As to his argument that the Court in its Opinion and Order denying his Motion stated that his

counsel was ineffective, the Court disagrees. The Court did deny certain claims in his Motion

due to the lack of substance behind his arguments. But Defendant Ervin has failed to show that

there was indeed substance behind those arguments, substance which his attorney ought to have

raised in the Motion. Absent a showing of “the specific acts or omissions of counsel that form[]

the basis for his claim of ineffective counsel,” United States v. Kamel, 965 F.2d 484, 496 (7th

Cir. 1992) (quotation marks omitted), Defendant Ervin’s ineffectiveness claim must fail. He has

not shown what arguments his attorney should have raised, and he has not shown that his

17
attorney’s alleged failure to appropriately develop his arguments caused him any prejudice.

Therefore, he has not shown ineffective assistance of counsel in his fourth ground for relief. 

As to Defendant Ervin’s fifth ground for relief, the Court addressed the issue of the racial

makeup of the jury pool in its Opinion and Order denying the Motion for Judgment of Acquittal

or in the Alternative for a New Trial. In that Opinion and Order, the Court noted that AfricanAmericans comprised 6.03% of the Fort Wayne Division, and that the disparity between the

percentage of African-Americans in the Division and the percentage of African-Americans on

the venire in Defendant Ervin’s trial was only 3.7%. Therefore, under Seventh Circuit precedent,

the Court denied Defendant Ervin’s Motion. See United States v. Ashley, 54 F.3d 311, 314 (7th

Cir. 1995) (“a discrepancy of less than ten percent alone is not enough to demonstrate unfair or

unreasonable representation of blacks on the venire”). In his fifth ground for habeas relief,

Defendant Ervin argues that his attorney failed to produce proof that African-Americans were

unfairly under-represented in his jury venire. But Defendant Ervin submits no evidence that the

under-representation on his venire amounted to “anything more than a statistical coincidence.”

Id. Therefore, Defendant Ervin has failed to show that his attorney’s failure to bring forth such

putative proof—either at trial or in the Motion—constituted ineffective assistance. He has not

shown purposeful discrimination; nor has he shown that he was denied equal protection of the

laws in violation of the Fourteenth Amendment. 

As to Defendant Ervin’s argument that his counsel was ineffective for failing to object to

the transfer of his case from the Hammond Division to the Fort Wayne Division, the Court

agrees with the Government that this represented a strategic choice by counsel. Prior to trial,

Defendant Ervin moved for a recusal which had the effect of emptying the pool of available

18
judges in the Hammond Division. Therefore, the chief judge transferred the case to the Fort

Wayne Division. Because strategic decisions by counsel are generally “not subject to question by

a reviewing court in deciding an ineffective assistance claim,” United States v. Boyles, 57 F.3d

535, 551 (7th Cir. 1995) (quotation marks omitted), the Court does not find that Defendant

Ervin’s attorney’s choice which led to the transfer of the case to the Fort Wayne Division

constituted ineffective assistance. 

For all these reasons, the Court will deny the habeas claims raised by Defendant Ervin in

grounds four and five. 

C. Ineffective Assistance of Counsel Claims in the Amended Memorandum of Law and

Motion in Support

On March 21, 2011, Defendant Ervin filed an Amended Memorandum of Law and

Motion in Support of his original § 2255 Motion. In his Amended Motion, he requests leave to

amend and clarify his ground two for habeas relief, but asserts that he is not adding entirely new

claims. He argues that his amended facts relate back to his ground two under Federal Rule of

Civil Procedure 15(c)(1)(B) and because they concern the same “common core of operative

facts” under the Supreme Court’s ruling in Mayle v. Felix, 545 U.S. 644, 664 (2005). Before

addressing the merits of the proffered amended facts, the Court must address the proposed

amendment itself. 

In its Response to the Amended Motion [ECF No. 1738], the Government acknowledges

that amendment to a § 2255 motion is possible while the § 2255 motion remains pending for

decision before a court. As the Seventh Circuit has stated, “part of every civil case . . . is an

entitlement to add or drop issues while the litigation proceeds.” Johnson v. United States, 196

19
F.3d 802, 805 (7th Cir. 1999). Accordingly, “[a] prisoner receives one complete round of

litigation, which as in other civil suits includes the opportunity to amend a pleading before

judgment.” Id. On the question of whether a proposed amendment constitutes a prohibited

second or successive motion under the Anti-Terrorism and Effective Death Penalty Act

(AEDPA), the Seventh Circuit has stated definitively that “‘a proposal to amend one’s first

motion is not a second motion,’ at least when the first has not yet reached a final decision.”

Vitrano v. United States, 643 F.3d 229, 233–34 (7th Cir. 2011) (quoting Johnson, 196 F.3d at

804) (citation and internal quotation marks omitted); see also Rutledge v. United States, 230 F.3d

1041, 1051 (7th Cir. 2000) (“Until a final ruling has been issued, a district court must consider a

petitioner’s request to amend his § 2255 motion, though the court need not grant the requested

amendments.”). 

“[D]istrict courts have wide discretion in deciding whether to grant leave to amend.

Justice generally does not require such leave if a movant demonstrates ‘undue delay, bad faith,

or dilatory motive,’ or if undue prejudice to the opposing party would result.” Vitrano, 643 F.3d

at 234 (quoting Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th

Cir. 2007)); see also Rutledge, 230 F.3d at 1051 (“A district court can refuse to let the defendant

amend the petition for reasons such as delay.”). 

In his Amended Memorandum of Law and Motion, Defendant Ervin argues that he is not

raising new claims, but rather is expanding the narrative of his original ground two by

introducing new and recently discovered evidence. The Government in its Response, however,

notes that Defendant Ervin is now adding two additional grounds for relief that are in substance

new claims. The Court agrees. It appears that Defendant Ervin’s first new ground for habeas

20
relief has to do with his attorney’s failure to contact, depose, and call at trial certain alibi

witnesses. It appears that his second new ground for relief concerns his attorney’s failure to call

an Officer House, who Defendant Ervin claims would have provided exculpatory evidence

and/or testimony at trial. Neither of these claims were raised in Defendant Ervin’s original

ground two, which related to his attorney’s alleged failure to request an evidentiary hearing upon

learning of Defendant Arreola’s additional misconduct. Accordingly, the Court agrees that

Defendant Ervin is attempting to amend his § 2255 Motion by adding what are, in substance, two

additional grounds for habeas relief.

In its Response, the Government does not argue that the request to amend and add new

claims filed by Defendant Ervin should be denied. The Government recites the standard for

amending any pleading (after an amendment as a matter of course within 21 days): “The court

should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Government

then states that because the new claims were “raised prior to the final resolution of [Defendant

Ervin’s] pending motion filed pursuant to § 2255[,] . . . it is within the court’s discretion to grant

leave to amend.” (Gov’t’s Resp. in Opp’n to Pet’r James Ervin’s Am. Mot. 3, ECF No. 1738.)

The Government submits no argument about Defendant Ervin’s delay in raising the new claims,

nor does it argue that he is raising them in bad faith. See Vitrano, 643 F.3d at 234. Accordingly,

because no final ruling has issued as to the original § 2255 Motion, the Court will grant

Defendant Ervin leave to amend his original § 2255 Motion by adding the new claims, and will

consider those claims on the merits. 

1. Claimed Ineffective Assistance for Failing to Contact, Depose, and Call Certain

Witnesses at Trial

21
In his eighth ground for relief, Defendant Ervin argues that his counsel was ineffective

because he “failed to contact, depose, and call for alibi testimony, vital witnesses.” (Am. Mem.

of Law and Mot. 1, ECF No. 1725.) Defendant Ervin states that he has “only recently

discovered” that his alibi witnesses were in most cases never contacted (id. 3), and argues that

their testimony would “chronologically account for” his whereabouts at the time of the murders

for which he was convicted (id. 2). He concludes that this testimony, combined with the

testimony against him which was “thoroughly impeached,” would have resulted in his acquittal

at trial. He does not submit a sworn affidavit outlining the testimony these witnesses would have

offered, nor does he list the witnesses he has in mind.5

 The Government responds that Defendant

Ervin has failed to show ineffective assistance of counsel because he has failed to make a

specific showing of what the witnesses’ testimony would have been, and how it would have

made a difference at trial. Defendant Ervin replies by pointing the Court to the three witnesses he

listed in his Reply to the original § 2255 Motion, and to his statement that these alibi witnesses

“can chronologically account for Defendant Ervin’s whereabouts.” (Am. Mem. of Law and Mot.

2.) 

A lawyer’s decision “to call or not to call a witness is a strategic decision generally not

subject to review.” Valenzuela v. United States, 261 F.3d 694, 699–700 (7th Cir. 2001) (quoting

United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997)); United States v. Adamo, 882

F.2d 1218, 1227 (7th Cir. 1989) (“once defense counsel conducts a reasonable investigation into

all lines of possible defenses, counsel’s strategic choice to pursue one line to the exclusion of

5

In his Reply, Defendant Ervin indicates that the witnesses who would offer alibi testimony are

the same witnesses he listed in his Reply to the original § 2255 Motion. (See Reply 9, ECF No. 1671.) 

22
others is rarely second-guessed on appeal”). However, an attorney “has a duty to make

reasonable investigations or to make a reasonable decision that makes particular investigations

unnecessary.” Strickland, 466 U.S. at 691. 

The decision not to even contact potentially exculpatory witnesses can constitute

ineffective assistance of counsel. Ramonez v. Berghuis, 490 F.3d 482, 488 (6th Cir. 2007)

(counsel’s decision not to interview key witnesses constituted ineffective assistance); Soffar v.

Dretke, 368 F.3d 441, 473 (5th Cir. 2004) (counsel’s decision not to interview the only known

eyewitness constituted ineffective assistance). But a defendant must make a showing that

counsel failed to perform effectively by offering evidence of such failure. Here, Defendant Ervin

has made no such showing. He has not submitted a sworn affidavit stating that he informed his

attorney of alibi witnesses in advance of trial and that his attorney failed to contact them. Nor has

he submitted sworn affidavits from any of his three proposed witnesses, and he has never

outlined what they would say except to suggest that they would chronologically account for his

whereabouts during the time of the murders. This is an insufficient showing. As the Seventh

Circuit has stated, Defendant Ervin “is correct that this court requires a district court to grant an

evidentiary hearing if a § 2255 petitioner ‘alleges facts that, if proven would entitle him to

relief[.]’ [However,] the threshold determination that the petitioner has sufficiently alleged such

facts requires the petitioner to submit a sworn affidavit showing what specific facts support the

petitioner’s assertions.” Galbraith, 313 F.3d at 1009 (quoting Stoia, 22 F.3d at 768) (citation

omitted). Defendant Ervin has made no such showing, and the Court therefore finds an

evidentiary hearing on this point to be unnecessary. 

Further, Defendant Ervin has failed to show exactly what testimony his proposed alibi

23
witnesses would have offered, and how that testimony would have affected the outcome at trial.

The Seventh Circuit has held that, to show prejudice from failure to call a favorable witness, a

defendant “must make a comprehensive showing of what the potential witness’ testimony would

have been and how it would have produced a different result.” Brown v. McGinnis, 922 F.2d

425, 428 (7th Cir. 1991); see also Ashimi, 932 F.2d at 650 (“[E]vidence about the testimony of a

putative witness must generally be presented in the form of actual testimony by the witness or on

affidavit. A defendant cannot simply state that the testimony would have been favorable; selfserving speculation will not sustain an ineffective assistance claim.”) (footnote omitted).

Defendant Ervin has not done so. He has not given a comprehensive showing of what any of

these potential witnesses would have said at trial. Nor has he shown that their testimony would

have made a difference. Therefore, even if he had shown that his attorney’s failure to contact

these witnesses was unreasonable, he would still fail to show ineffectiveness because he has

made an insufficient showing on the question of the substance of the witness testimony. 

Because Defendant Ervin has failed to make any showing that his lawyer failed to contact

potential alibi witnesses, and because he has also failed to make a sufficient showing as to the

content of the testimony of these potential witnesses, he has failed to show that his counsel acted

in an unreasonable manner, and has failed to show that his counsel’s alleged error prejudiced

him at trial. Accordingly, the Court will deny habeas relief on this eighth ground raised by

Defendant Ervin. 

2. Claimed Ineffective Assistance of Counsel for Failing to Call Additional Alibi Witness

In his ninth ground for habeas relief, Defendant Ervin claims that his counsel was

24
ineffective when he failed to call at trial one additional alibi witness. Defendant Ervin does not

list the name of this alibi witness in his Amended Memorandum of Law and Motion, but from

the context it appears he is suggesting that his counsel should have called Officer House at trial.

He argues that if his counsel had examined Officer House at trial, his appearance and testimony

would have undercut Defendant Arreola’s in-court identification of Defendant Ervin, and would

have resulted in his acquittal. The Government responds that Defendant Arreola was in fact

impeached at trial concerning his original identification of Defendant Ervin, in which he referred

to an officer by the name of either Jamie or House. The Government responds, further, that

counsel’s decision not to call Officer House to the stand was a strategic decision, for the purpose

of allowing the jury to believe that Officer House matched a physical description comporting

with the defense theory of the case. The Government also responds that Defendant Ervin has

failed to show how he was prejudiced by the failure to call Officer House to the stand as he has

failed to show exactly what Officer House would have said or how such testimony would have

made a difference at trial. Defendant Ervin replies that “[a]ny benefit received with the

presentation of [Officer House], far outweigh any possible negative effect that same presentation

would have brought.” (Reply 8, ECF No. 1740.) 

The Court agrees with the Government that Defendant Ervin has failed to show

ineffectiveness on this ninth ground for habeas relief. As stated above, a lawyer’s decision “to

call or not to call a witness is a strategic decision generally not subject to review.” Valenzuela,

261 F.3d at 699–700 (quoting United States v. Williams, 106 F.3d at 1367). Defendant Ervin

urges that Officer House should have been called to the stand so that the jury could see how his

physical characteristics differed from those of Defendant Ervin. Defendant Ervin makes no

25
showing of what Officer House would have said if called to the stand, or even whether Officer

House would have agreed to say anything at all. The Government suggests not having Officer

House present may have been a defense strategy, allowing the jury to imagine that he fit the

physical description associated with the defense theory. The Court need not elucidate exactly

why defense counsel chose not to call Officer House to the stand. The decision not to call a

witness is generally not subject to review. See Valenzuela, 261 F.3d at 699–700; Boyles, 57 F.3d

at 551. Defendant Ervin has made no suggestion that his attorney failed to investigate what

Officer House might have said. Therefore, Defendant Ervin has not shown that his attorney

failed to make a “reasonable decision” about whether to call Officer House. Strickland, 466 U.S.

at 691. He has also not shown how the failure to call Officer House prejudiced him because he

has not made a comprehensive showing of what Officer House’s testimony would have been or

how it would have produced a different result. See McGinnis, 922 F.2d at 428. Accordingly,

Defendant Ervin has failed to establish ineffectiveness on the part of his attorney, and the Court

will deny the claim contained in this ninth ground for habeas relief.6

D. Freedom of Information Act Request

In his Motion and Affidavit of Fact[s], Defendant Ervin urges the Court to order the

6

Imbedded in this ninth ground is an argument that Defendant Arreola’s in-court identification of

Defendant Ervin should have been suppressed because it came on re-direct examination when Defendant

Arreola had already seen Defendant Ervin in court. The Court previously denied Defendant Ervin’s

objection to this in-court identification. (See Op. & Order 5, ECF No. 1408.) Furthermore, under the

authority cited by Defendant Ervin, an identification is proper if the totality of the circumstances show its

reliability, United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir. 1995), and Defendant Ervin raises no

new argument or evidence suggesting that the Court should alter its initial determination—that Defendant

Arreola’s in-court identification of Defendant Ervin was proper. Defendant Ervin’s Submission of Newly

Received Exhibits [ECF No. 1746] also does not undermine this Court’s confidence in its determination

that the in-court identification of Defendant Ervin by Defendant Arreola was properly admitted. 

26
Department of Justice to provide him with 36 boxes of materials related to his case, at a cost of

$1,008, based on his promise to pay out of his future monthly prison earnings. He attaches to his

Motion a copy of the denial letter he received from Susan B. Gerson, Acting Assistant Director

of the Freedom of Information and Privacy Staff at the United States Department of Justice. In

her Letter, Ms. Gerson states that the Department will not accept an offer to pay for documents

on an installment basis. She cites to Sliney v. BOP, No. Civ.A. 04-1812 RBW, 2005 WL

3273567, at *4 (D.D.C. Sept. 28, 2005), where the district court stated: “There is no authority in

the statute or caselaw supporting plaintiff’s proposition that his agreement to allow the agency to

withdraw monthly partial payments from his prison account constitutes an agreement to pay the

total fee.” Defendant Ervin offers no legal authority to rebut this proposition. 

Finding that Defendant Ervin has offered no basis upon which this Court could enjoin the

Department of Justice to provide him documents, the Court will deny Defendant Ervin’s request. 

E. Request for Status and/or Judgment

Finally, in his Request for Status and/or Judgment [ECF No. 1757], Defendant Ervin asks

the Court to issue a decision in his case and cause. As articulated herein, the Court grants his

request. 

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must

“issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”

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

27
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11 of 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) (quotation

marks omitted); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983). Where the district court has

rejected the constitutional claims on procedural grounds, the court should issue a certificate of

appealability “when the prisoner shows . . . that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529

U.S. at 484. Where the district court has rejected the constitutional claim on the merits, “the

showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Id. The defendant is not required to show that he will ultimately succeed on

appeal. Miller-El v. Cockrell, 537 U.S. 322, 337, 342 (2003) (stating that the question is the

“debatability of the underlying constitutional claim, not the resolution of that debate”).

Rule 11(a) permits a district court to direct the parties to submit arguments on whether a

certificate of appealability should issue. Additional argument is not necessary here. The

constitutional issues presented by Defendant Ervin’s Motion are whether his counsel was

ineffective in failing to move for a severance of his trial from co-Defendant Zambrana before

trial, in failing to move for an evidentiary hearing in conjunction with his motion for a new trial,

in failing to object to the jury instructions, in failing to adequately support the Motion for

28
Judgment of Acquittal or in the Alternative for a New Trial, in failing to show evidence of an

improper jury pool, in failing to object to the Seventh Circuit’s characterization of the evidence,

in failing to contact, depose, or call at trial certain alibi witnesses, and in failing to call Officer

House to the stand.7

 Because his claims do not make the requisite showing for ineffectiveness, as

outlined above, Defendant Ervin cannot make the necessary showing that reasonable jurists

would find the district court’s assessment of his claims debatable or wrong. Consequently, the

Court will deny a certificate of appealability as to Defendant Ervin’s Motion.

CONCLUSION

For the foregoing reasons, the Court DENIES Defendant Ervin’s Motion Under 28

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

No. 1663]; GRANTS his request to Amend contained in his Amended Memorandum of Law and

Motion in Support [ECF No. 1725] but DENIES the new claims added by that amendment on

their merits; DENIES his Motion and Affidavit of Fact[s] [ECF No. 1741]; and GRANTS his

Request for Status and/or Judgment [ECF No. 1757]. Furthermore, the Court DENIES Defendant

Ervin a certificate of appealability.

SO ORDERED on January 9, 2013.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

7

This case also presents a non-constitutional issue: whether the Court erred in not instructing the

jury on the definition of the word impeachment, and whether that claim is procedurally barred. Because

this is not a constitutional claim, the Court will deny a certificate of appealability on this issue. Slack, 529

U.S. at 483; 28 U.S.C. § 2253(c). 

29