(Mot. at 6(e)-(g).} Once again, Jennings’ claims fail.

Some of the “deficiencies” Jennings identifies were, in reality, strategy decisions by his
counsel, including his agreement with the government that Jennings would shave his beard and all
of the contested stipulations. In evaluating ineffective assistance claims, courts do not second guess
reasonable strategy choices made by trial lawyers. United States v. Williams, 106 F.3d 1362, 1367
(7 Cir. 1997) (“The Strickland [ineffective assistance of counsel] test is highly deferential to
counsel, presuming reasonable judgment and declining to second guess strategic choices.” (internal
quotation marks and citations omitted). The record establishes that all of these choices were
reasonable.

Defense counsel’s decisions to have Jennings shave and forego argument about the lineup
were based on his perfectly reasonable desire to keep the jury from learning that Jennings had altered
his appearance, by growing a beard, between his arrest and the lineup.

Similarly, counsel’s stipulations to: the amount of money the banks lost, the admission of
Joe Smith’s guilty plea, playing only a portion of one of the MCC tapes and Agent Heilman’s
testimony that a teller at one of the banks told him the man who took cash from her drawer was about
5'2" tall, were reasonable strategic decisions. Counsel, having no basis for disputing the amount of
money the banks lost or Agent Heilman’s testimony, wisely decided to de-emphasize that
unfavorable evidence by stipulating to it rather than having it accentuated for the jury by a parade
of live witnesses. Equally sensible was defense counsel’s agreement that the portion ofan MCC tape,
which the government described as “highly prejudicial” to the defense, would not be played for the
jury. (Trial Tr. at 560-61.) Counsel’s stipulation that Joe Smith’s guilty plea was admissible as an

exception to the hearsay rule was also reasonable. Smith’s refusal to testify in Jennings’ trial made

-13-


Moreover, even ifit did, the government’s introduction of testimony based on the 302 would
not have prejudiced Jennings. Though Elem is not mentioned in the arrest log, Jennings certainly
is. At 11:23 p.m., the log states, “[CLARENCE] pointed out the house located at 5362 West Crystal
Street, Chicago, as belonging to ODELL.” (Id., Ex. Eat 2.) Because Jennings concedes the accuracy
of the arrest log, and the arrest log corroborates the implication of Jennings that appears in the 302,
Jennings would not have been prejudiced by testimony about that document, even if it inaccurately
implicated Elem.

Jennings’ argument with respect to the bank videotape is similarly flawed. Jennings asserts
that the tape, which depicted one of the robbers as having a tattoo on his right arm, was intentionally
destroyed by the government. Jennings offers no evidentiary support for this claim, and the record
contradicts it. The destruction of the videotape occurred in open court, after the tape had been played
for the jury, and in the presence of defense counsel. Subsequently, Detective Jin testified that its
destruction was accidental. (Trial Tr. at 624.) Given the dearth of support for the notion that the
tape was intentionally destroyed, Jennings is entitled to no relief on this claim.

Nor is he entitled to relief on his claim that the Probation Department violated his rights by
noting in his PSI that Jennings has a tattoo on his right arm. (See Mot., Ex. G.) The Probation
Department did not prepare the PSI until after Jennings had been convicted. (See 5/14/98 Min.
Order (ordering “cause referred to probation department for presentence investigation”).) Thus, the
statement about the tattoo in Jennings’ PSI could not have prejudiced him at trial, even if it was
erroneous.

We are also not persuaded that Jennings’ arraignment by Magistrate Judge Keys was

improper or prejudicial. First, the Local Criminal Rules of this Court empower Article III Judges

-4-



In short, Jennings has not demonstrated that he was prejudiced by the omission of any of
these issues from his appeal. Even if he had shown prejudice, however, Jennings would still have
to demonstrate that his appellate counsel was, in fact, ineffective, to satisfy the cause element of the

Belford test. Jennings’ appellate counsel was constitutionally ineffective only if his performance fell

below an objective standard of reasonableness and, but for his errors, the result of the appeal would
likely have been different. Strickland, 466 U.S. 668 at 688, 694. For the reasons discussed above,
the result of Jennings’ appeal would have been no different even if each of these claims had been
presented to the appellate court. Because Jennings has not demonstrated that his appellate counsel
was constitutionally deficient, he has also not satisfied the cause clement of the Belford test.
Having failed to demonstrate cither cause for or prejudice from his failure to raise these
issues on direct appeal, Jennings’ claims are not cognizable under section 2255. His section 2255

motion is, therefore, denied.

-17-



only if the claims were meritorious. Thus, we must determine whether any of the deficiencies he
cites would have merited relief.

Jennings received ineffective assistance only if counsel’s performance fell below an objective
standard of reasonableness and, but for his errors, the result of the proceeding would likely have been
different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “[NJaked assertions [of] . . .
ineffective assistance,” however, will not sustain a claim. Jones v. United States, 167 F.3d 1142,
1145 (7" Cir. 1998). Rather, Jennings must “adequately specify” the conduct that he contends was
constitutionally lacking, if he is to prevail. Id. at 1146.

Jennings first says that his trial counsel was ineffective for failing to object to the alleged
government misconduct discussed above. For the reasons set forth above, however, Jennings was
not prejudiced by his trial counsel’s inaction on those issues. Absent a showing of prejudice, these
ineffective assistance claims fail.

Next, Jennings says that his attorney denied him the right to testify in his own defense. He
did this, Jennings says, by advising Jennings not to testify, advice that Jennings did not think he
could overrule. Unfortunately for Jennings, the record contradicts this claim. During the trial, the
Court explained to Jennings that he had a right to testify and that the decision about whether to do
so was his and his alone. (Trial Tr. at 657-59.) Jennings may now regret his decision to remain
silent, but the colloquy between Jennings and the Court about his right to testify establishes that it
was an informed one.

Jennings also contends that his counsel was ineffective for failing to interview a number of
witnesses, including: Clarence and Larry Anderson, Tiffany Martin, Clarence Lee, Corina Elem and

Rosario Perez. Jennings has not, however, offered any support for this claim. He has not, for

-9-


citation omitted). The FBI agents’ testimony, that Jennings said: “I don’t own [the apartment]. Go
ahead and search,” (see 5/5/98 Hr’g Tr. at 10), is neither exceedingly improbable nor internally
inconsistent. In fact, Jennings does not even argue that it is. He simply says it is untrue. (See Mot.
at 6(i).) Given the law in this circuit, that kind of unsupported challenge to a credibility
determination has no chance of success. Because Jennings’ chances of prevailing on that issue were
virtually non-existent, he was not prejudiced by his lawyer’s failure to raise it on appeal.

Jennings also says that the government used illegally-obtained tapes of telephone
conversations he had when he was held at the MCC against him at trial. According to Jennings, the
government never established that the tapes were duly authorized, and thus, should not have been
allowed to use them at trial.

Once again, the record contradicts Jennings’ claim. Bureau of Prisons (“BOP”) officials are
authorized to record inmate telephone calls if they do so in the ordinary course of their activities.
See 18 U.S.C. § 2510(5)(a)(ii) (exempting from wiretap statute any telephone calls recorded by “an
investigative or law enforcement officer in the course of his duties”); 28 C.F.R. § 540.102 (BOP
regulation requiring warden of each institution to “establish procedures that enable monitorin ig of
telephone conversations on any telephone located within the institution”); United States v. Feekes,
879 F.2d 1562, 1565-66 (7" Cir. 1989) (holding that tape recordings of inmate calls made in ordinary
course pursuant to BOP regulations are exempt from wiretap statute). Though the government needs
the Attorney General’s approval to initiate a wiretap, it can obtain copies of recordings lawfully
made by the BOP simply by serving it with a subpoena. Compare United States Attorney’s Manual,
1-2.301 with id., 9-2.400, available at, www.usdoj.gov. According to BOP employee Carmen

Torres, who made the copies of the tapes of Jennings’ calls, that is just what the government did.

-6-



to notify the Clerk of the Court that they “wish[] to have criminal cases routinely referred to a
magistrate judge for conducting arraignments and other pretrial matters.” LCrR 50.3(d). At the end
of 1997, for medical reasons, this Court availed itself of that procedure. Thus, the arraignment about
which Jennings complains had been duly referred to Magistrate Judge Keys. Moreover, even if
Magistrate Judge Keys had acted without authority, Jennings still would not be entitled to any relief
because he: (1) was re-arraigned before this Court on a superseding indictment a few weeks later
(see 2/12/98 Min. Order); and (2) pleaded not guilty in both arraignments and subsequently received
a full trial before this Court. In short, Jennings has no reason to complain about his initial
arraignment before Magistrate Judge Keys.

Jennings’ next contention is that the government used illegally seized evidence against him
at trial. The evidence about which Jennings complains was seized from Jennings’ apartment the
night he was arrested. Though the government had no search warrant, it claimed that Jennings had
consented to the search. Jennings denied that he had consented and filed a motion to suppress the
evidence the government seized. After conducting a hearing, the Court denied Jennings’ motion,
having decided that the agents’ version of events was more credible. (See 5/5/98 Min. Order; 5/5/98
Hr’g Tr. at 10.) Jennings says that credibility determination was erroneous and should have been
challenged by his lawyer.

The Court disagrees. A trial court’s credibility findings are virtually unreviewable. “In a
swearing contest, the trial judge’s (or jury’s) choice of whom to believe is conclusive on the
appellate court unless the judge credits exceedingly improbable testimony,” such as a “story [that is]
so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.”

United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7" Cir. 1990) (internal quotation marks and

-5-


Conclusion

For all of the reasons stated above, Jennings’ section 2255 motion is denied and this case is
dismissed. Jennings’ motion for leave to file a reply in excess of five pages is granted. His motions
for a writ of habeas corpus ad testificandum, for an evidentiary hearing and to place this cause on
the hearing calendar are denied. Jennings’ counsel is given leave to withdraw, The Court will not
entertain any motions for reconsideration of this Order. If Jennings, now pro se, wishes to appeal
this Order, he must file a motion for a certificate of appealability, pursuant to 28 U.S.C. § 2253(c),
with the Court within thirty days after the entry of this Order.

ENTER:

— — ~ Ze
UNITED STATES DISTRICT JUDGE

DATED: December 9 2.093

-18-


(“We... hold that the Fifth Amendment, in its direct application to the Federal Government and in
its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the
prosecution on the accused’s silence or instructions by the court that such silence is evidence of
guilt.”). The prohibition applies to both indirect and direct comments. United States v. Mietus, 237
F.3d 866, 871 (7" Cir. 2001). “Nevertheless, indirect requests to draw adverse inferences from the
defendant’s silence violate the Fifth Amendment only if (1) the prosecutor manifestly intended to
refer to the defendant’s silence or (2) a jury would naturally and necessarily take the remark for a
comment on the defendant’s silence.” Id

Viewed in context, the comments challenged here do not rise to the level of a Fifth
Amendment violation. In his closing, defense counsel made quite an effort to put an innocent gloss
on the tapes of Jennings’ calls. (See Trial Tr. at 751-556.) Rather than showing guilt, the defense
argued, the tapes showed that Jennings was “concerned about the false accusations” that Clarence
was making about him. (Id. at 756.) To rebut that argument, the prosecutor made the comments
Jennings challenges, which put an inculpatory spin on the tapes. Viewed in context, it is clear that
the government’s comments were not intended to refer to anything but Jennings’ jailhouse
conversations. Moreover, given that context, the jury could not have naturaily and necessarily
understood those comments to refer to anything else. Because the government’s comments did not
violate Jennings’ constitutional rights, he was not prejudiced by the omission of that issue from his
appeal.

The second category of issues that Jennings says should have been raised on appeal concern

the ineffective assistance ofhis trial counsel. Of course, Jennings was prejudiced by these omissions



Minwtc Oris Form (06/97)

ne 5 NE United States District Court, Northern District of Illinois

at
ve Magttrate Judge Paul E, Plunkett “Than Assigned Judge
CASE NUMBER 03 C 1436 DATE 12/9/2003
CASE ODELL JENNINGS vs. UNITED STATES OF AMERICA
TITLE

{In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented]

MOTION:

DOCKET ENTRY:

ql) Oo Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) im) Answer brief to motion due___. Reply to answer briefdue__

(4) ao Ruling/Hearingon eset for_____ at

(5) QO Status hearing[held/continued to] [set for/re-set for]on___setfor____at

(6) q Pretrial conference[held/continued to] [set for/re-set for]on___setfor ss at__
ia) oO Trialfset for/re-set for]on__at

(8) Oo {Bench/Jury trial] [Hearing] held/continued to_____at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUFRCP4(m) (Local Rule 41.1 C)FRCP41(a)(1) (1 FRCP41(a)(2).

qi)

qo) [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Jennings’ section 2255
motion is denied and this case is dismissed. Jennings’ motion folleave to file a reply in excess of five pages is
granted. His motions for a writ of habeas corpus ad testificandum, for an evidentiary hearing and to place this
cause on the hearing calendar are denied. Jennings’ counsel is given leave to withdraw. The Court will not
entertain any motions for reconsideration of this Order. If Jennings, now pro se, wishes to appeal this Order, he
must file a motion for a certification of appealability, pursuant to 28 U.S.C. Section 2253(c), with the Court
within thirty days after the entry of this Order.

[For further detail see order attached to the original minute order.]

No notices required, advised in open court,
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

umber of notices

DEC 1072003

date docketed,

TBK

courtroom
deputy’s
initials

Dalehindrectiebris

central Clerk’s Office

mailing deputy initials



suggest that his lawyer failed to make this request. Moreover, even if he did, we do not see how
those notes would have helped Jennings. Clarence, a confessed criminal and drug addict, was
thoroughly impeached by Jennings’ counsel with his criminal record, prior inconsistent statements
and plea agreement with the government. (Trial Tr. at 31-41, 214-51.) The impeachment was so

99 66,

extensive that the Court characterized it as a “primer,” “an example of every different way in which
the federal rules allow a witness to be impeached.” (12/9/99 Hr’g Tr. at 58.) Thus, even if the
agents’ notes contained additional fodder for impeachment, they would have had no effect on the
outcome of the trial.

There is also no merit to Jennings’ claim that his lawyer unreasonably failed to request the
FBI’s 302 of Rosario Perez. On the contrary, the record suggests that he did. During his cross-
examination of Perez, Jennings’ lawyer pointed out inconsistencies between her statement to the FBI
and her trial testimony. (Trial Tr. at 391-95.) In fact, during his questioning, Jennings’ lawyer
referred specifically to “the FBI agent[s’] . . . interview report,” a document otherwise known as a
302. (Id. at 392.) Because there is no evidence to substantiate Jennings’ claim that his lawyer failed
to request that document, it cannot support an ineffective assistance claim.

Equally baseless is Jennings’ claim that his lawyer botched the cross-examination of Perez
by not asking her “about viewing the videos.” (Mot. at 6(d).) Jennings does not explain, and we
cannot discem, what material information that line of questioning would have revealed. In any
event, a review of defense counsei’s cross of Perez establishes that it was not only reasonable, but
quite effective. Counsel pointed out the limited opportunity Perez had to observe the bank robbers
and the substantial differences between her contemporaneous description of the “short” bank robber

and Jennings’ actual appearance. (Trial Tr, at 390-95.) In short, Jennings’ lawyer made a more than

-11-


example, submitted an affidavit from his trial counsel verifying that no interviews occurred. Norhas
he submitted affidavits from any of the putative witnesses describing the material evidence that such
interviews would have garnered. Absent such evidence, Jennings is entitled to no relief on this
claim.

Jennings contends that his counsel otherwise failed to develop favorable evidence by: (1)
refusing to play the video- and audiotapes for Jennings before trial; (2) refusing to allow Jennings
to review the grand jury testimony before trial; (3) failing to request the FBI agents’ notes concerning
Clarence Anderson’s arrest; (4) failing to request the 302 of the agents’ interview with eye-witness,
Rosario Perez; and (5) conducting an ineffectual coss-examination of Perez. None of these claims
has any merit.

The first claim fails because Jennings has not shown how he was prejudiced by his inability
to preview the audio- and videotapes. Absent some explanation of how such a preview would have
bolstered his case, his alleged failure to receive one cannot support an ineffective assistance claim.

Jennings fares no better with the second claim. Jennings’ counsel could not have given his
client a pre-trial peek at the grand jury testimony because the government failed to produce it. (See
12/9/99 Hr’ g Tr. at 57.) However, as the Court specifically found, that error was harmless given how
minor the variations were between Clarence’s grand jury testimony and his prior and subsequent

statements (id. at 58); an assessment with which the Seventh Circuit agreed. Elem, 269 F.3d at 881-

82. Because Jennings has not explained how receiving advanced notice of innocuous grand jury
testimony would have changed the outcome of his trial, this ineffective assistance claim fails.
Jennings’ third claim, that his lawyer failed to request the FBI agents’ notes of their interview

with Clarence, suffers the same fate. As an initial matter, Jennings has offered no evidence to

-10-



(Trial Tr. at 574-78.) Because Torres’ testimony proved that the tape recordings were authorized,
Jennings’ lawyer had no reason to argue that they were not.

Next, Jennings claims that his lawyer failed to object to the government’s concealment of
exculpatory evidence regarding Shane Dubow. Dubow was a reporter who extensively interviewed
one of Jennings’ co-defendants, Clarence Anderson, before the trial. Jennings contends that the
government knew about those interviews, yet failed to disclose the exculpatory evidence to him.

Contrary to Jennings’ claim, this issue was raised by his lawyers, albeit unsuccessfully, both

before this Court and on appeal. (See Jennings’ 11/15/98 Mot. New Trial); Elem, 269 F.3d at 882-

83. Because this issue was decided against him on appeal, it is not cognizable under section 2255.
Belford, 975 F.2d at 313.

Finally, Jennings argues that the prosecutor impermissibly commented on Jennings’ decision
not to testify, by saying in his rebuttal closing:

Let me say one thing about [the tapes of Jennings’ calls from the MCC] and [defense
counsel’s] rather tortured reading of those tapes. Perhaps the most extraordinary
thing about those tapes is what is not on them. I mean, there are a few ritual
expressions of innocence. He knows they are being taped. He’s telling people to be
careful of what they say. But do those really sound to you like the tapes of an
innocent man? Is that the way that, you know, that you would react if you were
wrongfully accused of an extraordinarily important crime, something carrying a very
heavy sentence; when you are locked up and not knowing what this was about?
Don’t you think that you would hear a different kind of conversation? “My God!
What is happening to me? Why is he saying these things about me? I’m innocent.
How am I going to get out of this?” Did you hear any of that on the tapes?

(Trial Tr. at 794.) Those comments, Jennings contends, suggest that an innocent man would not
stand mute — in jail or in court — if falsely accused of a crime.
As Jennings points out, the Fifth Amendment forbids the government to comment on a

defendant’s failure to testify in his own defense. Griffin v. California, 380 U.S. 609, 615 (1965)

-7-



recordings of conversations Jennings had while held at the MCC; (8) withholding of exculpatory
evidence regarding Shane Dubow’s interview with one of Jennings’ co-defendants, Clarence
Anderson; and (9) impermissible comment on Jennings’ silence at trial. As detailed below, Jennings
was not prejudiced by the omission of any of these issues from his appeal.

Jennings says that the prosecutor misled the jury into believing that the initial complaint,
which mentioned “Joe” as an accomplice, had not been filed because he used a copy of that
complaint as a trial exhibit rather than the original. Any danger that the jury may have drawn such
an inference, however, was eliminated by the testimony of Detective Branum, which confirmed that
the complaint that mentioned “Joe” was indeed filed. (Trial Tr. at 564, 570-71.) Thus, even if the
government’s use of the copy was improper, it did not prejudice Jennings in any way.

Jennings also contends that the government presented perjured testimony to the effect that
his co-defendant, Clarence Anderson, identified another co-defendant, Johnelle Elem, as an
accomplice to the bank robberies during an interview with the FBI on November 19, 1997. The
fallacy of that testimony, Jennings says, is revealed by the FBI’s arrest log pertaining to Clarence,
which says nothing about Elem.

There are two problems with this argument. First, the arrest log is just a summary of the
events that took place the day Clarence was arrested. It notes, among other things, that Clarence was
interviewed from 6:07 p.m. until 9:48 p.m., but says nothing about the substance of that interview.
(See Mot., Ex. E at 2.) The substance of the interview is recorded in another document, known as
a 302, on which the allegedly perjured testimony was based. (See id., Ex. D.) Given the differing
purposes of the two documents, the fact that Clarence’s implication of Elem appears only in the 302,

casts no doubt on the veracity of that document.


his plea admissible as a statement against penal interest under Federal Rule of Evidence 804(b)(3).
Any argument to the contrary would have been an act of futility that might have strained counsel’s
credibility with the Court.

Also innocuous were counsel’s failure to question whether the MCC tapes had been duly
authorized and to seek a copy of the order pursuant to which they were produced. As discussed
above, the government can lawfully obtain tapes of inmate telephone calls by serving the BOP with
a subpoena. Because BOP employee Torres testified that she produced the contested tapes in
response to a government subpoena, (Trial Tr. at 574-78), Jennings’ lawyer had no reason to
question their legality.

Jennings also faults his lawyer for failing to pursue more vigorously a new trial motion based.
on the Dubow materials and failing to seek from the government the tapes of the telephone
conversations between Dubow and Clarence. But Jennings does not explain, and we cannot see,
what additional work his counsel should have done on the new trial motion. In fact, the Court was
so impressed with defense counsel’s work on that motion that it complimented them on the record
for “pursuing th[at] avenue” for their clients. (12/9/99 Hr’g Tr. at 60-61.)

Equally baseless is Jennings’ contention that his lawyer should have asked the government
for the Dubow tapes. As the Court specifically found, the government did not have the Dubow
materials and did not know they existed until after the trial. (Id. at 59.) Thus, even if defense
counsel had known about and requested those materials from the government before trial, that
request would have been fruitless.

Next, Jennings takes issue with his lawyer’s lack of investigation into Clarence’s brother

Larry. Jennings says his lawyer should have sought tapes of phone conversations Clarence had with

-14-



him with a 9mm, nickel-plated, semi-automatic gun to use in the first two robberies. (Trial Tr. at
212-13.) Thereafter, in the following exchange, Clarence admitted that he had lied to the FBI about
that gun:

Q. And you told the agents that you were using a silver .38 revolver, didn’t you?

A. Yes.

Q. Was that a lie?

A. Yes, it was.

Q. All right. Now, that was a lie about where you had receive the gun, or it wasn’t

a lie about where you received it, it was a lie about the kind of gun you were using,

correct?

A. That’s true.

(id. at 214.) Jennings contends that his lawyer asked one question too many; that is, that he should
have ended the questioning with Clarence’s admission that he lied about the gun.

The Court agrees. But that small misstep was entirely harmless. First, the whole thrust of
that portion of Clarence’s testimony was that he lied about the kind of gun he used, not its source.
Thus, counsel’s last question, though unnecessary, did not highlight a point that might otherwise
have been lost. Second, defense counsel so thoroughly impeached Anderson on every other
imaginable ground that the veracity of all of his testimony was called into question. As a result,
Jennings was not prejudiced by his counsel’s, apparently inadvertent, emphasis of a bit of
unfavorable testimony.

The last problem Jennings has with his trial counsel is the quality of the initial post-trial
motions he submitted. As Jennings notes, the Court was also troubled by those motions because they
were too general to provide a basis for reexamining any aspect of the proceedings. (7/2/98 Hr’g Tr.
at 41.) Jennings does not, however, identify any meritorious grounds for a new trial that he believes

his lawyer should have raised. Absent such a showing, we cannot say that Jennings was prejudiced

by his counsel’s conduct.

-16-



any nonconstitutional issues that he did not raise on appeal. Id. Morever, with one exception,!
Jennings may not raise any constitutional issues he did not raise on appeal unless he can show: 1)
cause for failing to appeal them and “actual prejudice” from his failure to do so; or 2) “that the
district court’s refusal to consider the claims would lead to a fundamental miscarriage of justice.”
Id.; McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996).

In his pro se petition,” Jennings raises a host of issues, most of which he did not raise on

appeal. See generally United States v. Elem, 269 F.3d 877 (7 Cir. 2001). These issues were not

raised, Jennings says, because his appellate counsel was constitutionally ineffective. Ineffective

assistance of appellate counsel satisfies the cause element of the Belford test. Belford, 975 F.2d at

313-14n.5. But, even if Jennings could show that his appellate counsel was ineffective, an issue we
put aside until later, his claims would only be cognizable in this proceeding if he could demonstrate
that he was prejudiced by their omission from his appeal. Jennings has not made the requisite
showing.

The first category of omissions about which Jennings complains concerns alleged
government misconduct, including the government’s: (1) use ofa copy of the criminal complaint,
rather than the original, as a trial exhibit; (2) use of manufactured evidence implicating his co-
defendant Johnelle Elem; (3) intentional destruction of a bank videotape; (4) intentional
misstatement in his presentence investigation report (“PSI”) that he had a tattoo; (5) illegal

arraignment of Jennings; (6) use of illegally seized evidence; (7) use of illegally obtained tape

‘Ineffective assistance of counsel claims that are dependent on evidence outside the trial
record may be raised for the first time in a section 2255 motion. United States v. Alcantar, 83 F.3d
185, 191 (7" Cir. 1996).

’The Court appointed counsel for Jennings, but he elected to stand on the original petition.

-2-



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

EASTERN DIVISION
ODELL JENNINGS, )
)
Petitioner, )
)
v. ) No. 03 C 1436 (97 CR 765-1)

y Paul E. Plunkett, Senior Judge
UNITED STATES OF AMERICA, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

In 1998, ODell Jennings was convicted of various offenses arising from his participation in
several bank robberies. His conviction was affirmed on appeal in 2001. Jennings has now filed a
motion pursuant to 28 U.S.C. § (“section”) 2255 to vacate his conviction and sentence. For the

reasons set forth below, the motion is denied and this case is dismissed.

Discussion
Jennings is entitled to relief under section 2255 ifhis “sentence was imposed in violation of
the Constitution or laws of the United States, , . . the court was without jurisdiction to impose [it],
. .. the sentence was in excess of the maximum authorized by law, or [it] is otherwise subject to
collateral attack.” 28 U.S.C. § 2255. Section 2255 is not a substitute for an appeal. Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled in part on other grounds, Castellanos v.

United States, 26 F.3d 717, 719 (7th Cir. 1994). Consequently, Jennings cannot raise on this motion

60

-1-


reasonable effort to discredit Perez. The fact that the jury was not persuaded by that effort does not
render his performance deficient.

The next problem Jennings cites is his lawyer’s failure to object to various pieces of evidence
offered by the government. (Mot. at 6(c).) Jennings does not, however, explain why any of this
evidence was objectionable or how its admission prejudiced him. Such unsupported assertions are
insufficient to raise an ineffective assistance claim. Jones, 167 F.3d at 1145-46 (“naked assertions”
of ineffective assistance do not satisfy movant’s burden of proving ineffective assistance).

Jennings also takes issue with a variety of other acts and omissions of his trial counsel,
including his:

(1) failure to question whether the MCC tapes were appropriately authorized;

(2) agreement with the government that Jennings would shave his beard, which he
had during the lineup but not the robbery;

(3) failure to seek tapes of phone conversations Clarence had with his brother Larry
while he was held at the MCC;

(4) ineffective cross-examination of Clarence about the gun Jennings allegedly gave
him;

(5) stipulations: (a) to the amount of money the banks lost; (b) to the certified copy
of Joe Smith’s guilty plea being admissible as a hearsay exception; (c) not to argue
that the eye-witnesses failed to identify Jennings from the line-up; (d) to playing only
a portion of one of the MCC tapes; and (e) to the fact that FBI Agent Heilman, if
called, would testify that Hidelise Flores, a teller at the North Community Bank at
233 North Clark, told him that the man who took cash from her drawer was about
5'2" tall;

(6) failure to request a copy of the subpoena pursuant to which the MCC tapes were
made;

(7) failure to pursue vigorously a new trial motion based on the Dubow materials;
(8) failure to seek the tapes of the telephone conversations between Dubow and
Clarence, which were withheld by the government;

(9) failure to “investigate” why the FBI confiscated Aldi bags from Jennings’
apartment on November 19, 1997, when Clarence’s 302 of the same date does not
mention Aldi bags in connection with the robberies in which he implicated Jennings;
(10) failure to prepare adequate post-trial motions; and

(11) failure to pursue evidence relating to Larry Anderson’s arrest for other bank
robberies;

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Larry and should have requested all evidence relating to Larry’s subsequent arrest for other bank
robberies. Jennings does not, however, explain what relevance that evidence would have had to his
case. Larry was indicted for bank robberies that occurred after J ennings and Clarence were in
custody. (5/18/00 Hr’g Tr. at 65.) Thus, it is conceivable that the evidence pertaining to Larry
would have inculpated Clarence in the later robberies, but there is no reason to believe it would have
exculpated Jennings from the earlier ones. Because there is no evidence to suggest that the evidence
pertaining to Larry is material to Jennings’ case, his lawyer was not ineffective for failing to request
it.

Jennings also faults his lawyer for failing to “investigate” why the FBI confiscated Aldi bags
from Jennings’ apartment on November 19, 1997, when Clarence’s 302 of the same date does not
mention those bags in connection with Jennings. It is not clear what investigation Jennings thinks
his lawyer could or should have done. To the extent Jennings believes his lawyer should have cross-
examined the agents on that point, his decision not to do so was a reasonable one, given the record
in this case. FBI Agent Stover testified that Jennings and Elem were both arrested in the basement
apartment of 5362 Crystal Street in Chicago on November 17, 1997. (Trial Tr. at 541-47.)
According to Clarence’s 302 of the same date, he told the FBI that he and Elem used an Aldi bag
during a robbery the previous month. (Mot., Ex. D at 4.) Thus, as Agent Stover would no doubt
have told defense counsel from the stand, the government had good reason to retrieve the Aldi bags
from the Crystal Street apartment, though the connection between J ennings and the bags was not
apparent at the time.

The next issue raised by Jennings concerns the efficacy of his counsel’s cross-examination

of Clarence. In response to questioning by the defense, Clarence said that Jennings had provided

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