UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

DWAINE BARTLETT ) 

 ) 

v. ) Cause No. 1:14-CR-14-HAB 

 ) 1:20-CV-175-HAB 

UNITED STATES OF AMERICA ) 

ORDER AND OPINION 

 Dwaine Bartlett received a 200-month sentence after pleading guilty to conspiring to 

possess with intent to distribute five kilograms or more of cocaine and possessing a firearm in 

furtherance of a drug trafficking crime. The charges stemmed from a plan to steal money and drugs 

from a drug dealer. However, there was no drug dealer, no money, and no drugs. Bartlett and his 

co-defendants were the target of a reverse sting operation designed by the ATF. 

 Bartlett is, quite understandably, displeased by the idea of spending more than fifteen years 

in prison for participating in the reverse sting. As such, he has filed a motion under 28 U.S.C. § 

2255 to vacate, set aside, or correct his sentence. (ECF No. 553). The gist of the motion is Bartlett’s 

claim that his trial counsel was ineffective for raising several defenses, all related to the imaginary 

nature of the robbery. In its response (ECF No. 566), the Government takes issue with the legal 

basis for Bartlett’s motion and, on a more basic level, argues that Bartlett’s counsel did raise all 

the issues contained in the instant motion, albeit not successfully. Having reviewed the record and 

the parties’ filings, the Court agrees with the Government. 

A. Factual and Procedural Background 

 Bartlett raised no objections to the factual recitation in the final Presentence Investigation 

Report in his underlying prosecution (see ECF No. 465), so the Court will take all facts from that 

document. Bartlett’s case arose out of an earlier investigation of heroin trafficking targeting Floyd 

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Thomas, Jr. Early in that investigation, Thomas expressed his interest in performing a robbery. A 

confidential informant (“CI”) and an undercover task force officer (“UC”) told Thomas that they 

knew of a potential target for Thomas and his crew to rob. In February 2014, the UC and a second 

undercover task force officer (“UC2”) met with Thomas and three other men to plan the robbery. 

UC2 told the men that he expected between 15 to 20 kilograms of cocaine to be at the location 

when the robbery occurred. Thomas and his crew asked tactical questions and indicated that they 

were “ready for anything, including violence.” 

 Bartlett attended the second planning meeting for the robbery, part of a five-person crew 

that joined Thomas. Bartlett had been recruited into the scheme by a third individual, Richard 

Council. UC and UC2 again explained the robbery, this time indicating that the location would 

have 20 kilograms of cocaine at the time of the robbery. Bartlett was an active participant at the 

meeting: he described how the men intended to sweep the house to locate all occupants, and further 

mentioned that the crew had police uniforms to create the element of surprise. Thomas and his 

crew left the meeting with the understanding that they would wait for further directions from UC2. 

 That same day, UC and UC2 met with Thomas and his crew and advised that the robbery 

was a go. The men left their location and traveled to a warehouse to prepare for the operation. As 

the men concluded their preparations, law enforcement descended upon the warehouse, arresting 

Thomas, Bartlett, and the other members of Thomas’ crew. ATF special agents found multiple 

guns in the vehicles driven by Thomas’ crew, and located the police uniforms mentioned by 

Bartlett at the earlier meeting. 

 During a subsequent interview with law enforcement, Bartlett admitted his role in the plan. 

He admitted coming to Fort Wayne to perform a robbery and stated that he expected about 20 

kilograms of cocaine to be split amongst the participants. Bartlett planned to monetize his cut 

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through individuals he knew that could sell the cocaine. Bartlett told the officers that he and 

Council planned to act as lookouts while the rest of the men performed the robbery. 

 Robert W. Gevers, II, was appointed to represent Bartlett. In December 2016, Bartlett and 

his co-defendants filed a Motion for Evidentiary Hearing on the Issue of Selective Prosecution 

(ECF No. 200), alleging that the ATF improperly racially profiled them as part of its investigation. 

A joint reply in support of the Motion for Evidentiary Hearing was also filed. (ECF No. 205). This 

Court denied that Motion on February 14, 2017 (ECF No. 209), finding that Bartlett and his codefendants had failed to make a showing of discriminatory intent in order to obtain even a hearing 

on their racial profiling allegations. (Id. at 5–6). 

 Following pleas by several of Bartlett’s co-defendants, Thomas filed a number of pro se

motions addressing the matters raised by Bartlett now. Thomas asked the Court to reconsider its 

order on the racial profiling allegations and also sought to suppress evidence based on alleged 

outrageous government conduct. (See, generally, ECF Nos. 317–18, 320, 336–37). This Court 

denied those motions. (ECF Nos. 347, 348). Thomas later filed a motion to dismiss the indictment 

based on entrapment (ECF No. 363), which was also denied by this Court. (ECF No. 373). To 

protect the record, Gevers filed a motion on Bartlett’s behalf to adopt all the motions by his codefendants, including Thomas’ pro se motions. (ECF No. 383). The Court granted the motion 

“insofar as the pretrial motions of another defendant could apply to Defendant Bartlett.” (ECF No. 

402 at 1). The Court also confirmed that its rulings on the previous motions would stand. (Id.). 

B. Legal Analysis

A § 2255 motion must be granted when a defendant’s “sentence was imposed in violation 

of the Constitution or laws of the United States.” 28 U.S.C. § 2255. It is well-established, however, 

that a § 2255 motion is not a substitute for direct appeal. See Barnickel v. United States, 113 F.3d 

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704, 706 (7th Cir. 1997). Claims not raised on direct appeal are barred from collateral review 

unless upon review the petitioner establishes that a failure to consider the issue would amount to 

a fundamental miscarriage of justice. See Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). 

Ineffective assistance of counsel claims will generally fit into this mold; they generally are not 

appropriate for review on direct appeal as they often attempt to rely on evidence outside the record. 

See United States v. D’Iguillont, 979 F.2d 612, 614 (7th Cir. 1992). Nonetheless, “[r]egardless of 

when it is made, because counsel is presumed effective, a party bears a heavy burden in making 

out a winning claim based on ineffective assistance of counsel.” United States v. Trevino, 60 F.3d 

333, 338 (7th Cir. 1995). 

To make out a successful ineffective assistance of counsel claim, the petitioner must 

demonstrate that: (1) his counsel’s performance fell below an objective standard of reasonableness; 

and (2) the deficient performance so prejudiced his defense that it deprived him of a fair trial. See 

Strickland v. Washington, 466 U.S. 668, 688-94 (1984). 

With regard to the performance prong, [the] defendant must direct us to the specific 

acts or omissions which form the basis of his claim. The court must then determine 

whether, in light of all the circumstances, the alleged acts or omissions were outside 

the wide range of professionally competent assistance. 

Trevino, 60 F.3d at 338. Moreover, claims that an attorney was ineffective necessarily involve 

inquiries into an attorney’s trial strategies, which in turn requires facts which usually are not 

contained in the trial record. As such, many trial determinations, like so many “other decisions that 

an attorney must make in the course of representation[, are] a matter of professional judgment.” 

United States v. Berkowitz, 927 F.2d 1376, 1382 (7th Cir. 1991). Thus, the Court must resist a 

natural temptation to become a “Monday morning quarterback.” Harris v. Reed, 894 F.2d 871, 

877 (7th Cir. 1990). 

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It is not our task to call the plays as we think they should have been called. On the 

contrary, we must seek to evaluate the conduct from counsel's perspective at the 

time, and must indulge a strong presumption that counsel's conduct falls within a 

wide range of reasonable professional assistance. 

United States v. Ashimi, 932 F.2d 643, 648 (7th Cir.1991) (citations and quotations omitted). 

Should the petitioner satisfy the performance prong, he must then fulfill the prejudice prong 

by demonstrating “that there is a reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceedings would have been different.” United States v. Starnes, 14 F.3d 

1207, 1209-10 (7th Cir. 1994). “In making the determination whether the specified errors resulted 

in the required prejudice, a court should presume ... that the judge or jury acted according to law.” 

Strickland, 466 U.S. at 694. Further, 

[A] court hearing an ineffectiveness claim must consider the totality of the evidence 

before the judge or jury. Some of the factual findings will have been unaffected by 

the errors, and factual findings that were affected will have been affected in 

different ways. Some errors will have had a pervasive effect on the inferences to be 

drawn from the evidence, altering the entire evidentiary picture, and some will have 

had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly 

supported by the record is more likely to have been affected by errors than one with 

overwhelming record support. Taking the unaffected findings as a given, and taking 

due account of the effect of the errors on the remaining findings, a court making 

the prejudice inquiry must ask if the defendant has met the burden of showing that 

the decision reached would reasonably likely have been different absent the errors. 

Id. at 695-96. 

 Bartlett alleges that Gevers was ineffective for “[f]ailing to move for dismissal of 

Indictment due to Outrageous Government Conduct, Racial Profiling, and Entrapment.” (ECF No. 

553 at 4). The problem with Bartlett’s argument is that these arguments were already made on 

Bartlett’s behalf. Bartlett was a party to a motion asking for an evidentiary hearing on the racial 

profiling issue (ECF No. 200), and Gevers successfully joined in Thomas’ motions regarding the 

alleged outrageous government conduct and entrapment issues. (ECF No. 383). True, the motions 

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were unsuccessful, but that does not change the fact that all issues Bartlett now raises were before 

the Court during Bartlett’s underlying prosecution. 

 The fact that Bartlett’s issues were already raised and rejected leads the Court to believe 

that, rather than an ineffective assistance of counsel claim, Bartlett is really seeking to attack the 

merits of this Court’s prior rulings. There are any number of problems with Bartlett’s strategy. 

First, the appeal deadlines on this Court’s 2017 rulings have long since lapsed. See Fed. R. App. 

4(a)(1)(B). Second, Bartlett waived his right to appeal his sentence or conviction on “any ground 

other than a claim of ineffective assistance of counsel.” (ECF No. 447). Finally, since the propriety 

of this Court’s rulings could have been raised on direct appeal, they are barred from collateral 

review. Prewitt, supra. No matter the title on the pleading, Bartlett is not entitled to challenge this 

Court’s three-year-old rulings now. 

 Even if the Court could ignore the previous filings on Bartlett’s behalf, it would still find 

that Bartlett cannot satisfy the prejudice prong of the Strickland analysis. The majority of Bartlett’s 

brief in support of his § 2255 motion addresses his claim of “outrageous government conduct” and 

the Ninth Circuit’s holding in United States v. Black, 733 F.3d 294 (9th Cir. 2013). But, as the 

Government points out, this Circuit does not follow Black. Quite to the contrary, “[o]utrageous 

government conduct is not a defense in this circuit.” United States v. Stallworth, 656 F.3d 721, 

730 (7th Cir. 2011). Therefore, even if the outrageous government conduct issue had not been 

raised on Bartlett’s behalf, that failure could not be found to amount to constitutionally deficient 

performance. 

 Bartlett’s racial profiling claim fares no better. A defendant asserting a claim of selective 

enforcement must establish that “a law or regulation was enforced against him, but not against 

similarly situated individuals of other races.” United States v. Barlow, 310 F.3d 1007, 1010 (7th 

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Cir. 2002). That showing must be made by a clear evidence standard. United States v. Brown, 399 

F.Supp.3d 976, 995–97 (N.D. Ill. 2018). 

 The evidence related to Bartlett’s claim of racial profiling has already been analyzed by 

the Court and found wanting. Evaluating the evidence proffered by Bartlett and his co-defendants, 

this Court stated: 

The Defendants have not proffered adequate statistics to meet the discriminatory 

effect prong of their Armstrong motion. The statistical probabilities in Deng’s 

affidavit are based on the general population of the Northern District of Indiana and 

do not factor in data to establish similarly situated persons, such as prior criminal 

history. Barlow, 310 F.3d at 1012. Furthermore, the list of 36 white defendants does 

not supply any meaningful information for how the individuals in the cases listed 

were similarly situated to black defendants charged in reverse sting operations. The 

only reason given for these cases being similarly situated is that these white males 

were convicted of drug crimes, weapons offenses, and violent crimes, including 

robberies, but none were targeted in reverse sting operations. Buttressing this point, 

the Defendants have received discovery regarding ATF’s criteria for reverse sting 

operations in targeting only those individuals with a significant criminal history and 

predisposition for drug robberies. But the Defendants’ list of cases does not factor 

in this procedure. Some of the cases the Defendants list do not involve a proactive 

investigation with an informant or undercover agent, which are necessary 

conditions for a reverse sting operation. Not all of the cases were ATF 

investigations. 

(ECF No. 209 at 5). Bartlett does not address this finding in his § 2255 motion, and the Court finds 

no basis to believe that any other conclusion could be reached. 

 Finally, Bartlett believes that his indictment should have been dismissed due to entrapment. 

However, “[g]enerally speaking, entrapment is a question for the jury, not the court.” United States 

v. Mayfield, 771 F.3d 417, 439 (7th Cir. 2014). As the Seventh Circuit has explained, “the 

subjective basis of the defense makes entrapment a fact question for the jury to decide as part of 

its function of determining the guilt or innocence of the accused.” Id. (internal quotation omitted). 

When Bartlett pled guilty, he effectively withdrew entrapment from this case. The Court cannot 

find that a failure to raise entrapment at the indictment phase constitutes ineffective assistance. 

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 In light of the foregoing, the Court concludes that Bartlett is not entitled to a hearing on his 

motion. A district court has discretion to “deny an evidentiary hearing where the motion, files, and 

records of the case conclusively show that the prisoner is entitled to no relief.” Koons v. United 

States, 639 F.3d 348, 354–355 (7th Cir. 2011). As set forth above, the Court concludes that 

Bartlett’s identified issues were raised on his behalf, and that they provide him with no relief in 

any event. No amount of hearing will change that analysis. 

 Finally, the Court will consider whether a certificate of appealability should issue. See Fed. 

R. App. 22(b)(1). No certificate of appealability may issue unless “the applicant has made a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons 

set forth above, the Court finds that no such showing has been made. Therefore, the Court declines 

to issue a certificate of appealability here. 

C. Conclusion 

 For the foregoing reasons, Bartlett’s § 2255 motion is DENIED and DISMISSED WITH 

PREJUDICE, and the Court DECLINES to issue a certificate of appealability. 

SO ORDERED on August 11, 2020. 

 s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT 

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