because petition was not “accompanied by a detailed and specific affidavit which shows that the
petitioner has actual proof of the allegations”). See also Aleman v. United States, 878 F.2d 1009,
1012 (7" Cir. 1989) (no hearing required in every case where petitioner makes factual allegations;
allegations must be supported).

Elem next argues that his counsel should have objected to the admission of certain tape
recordings. Attrial, the government introduced tapes of telephone conversations Jennings had when
he was held at the Metropolitan Correction Center. Elem says the conversations between Jennings
and Jennings’s brother were redacted to remove references to him but in such a way that it was clear
to the jury that “tapes[] referenced [him].” (Mot. § 13.) These conversations, he says, were material
to his conviction. He claims that because Jennings did not testify at trial, he was denied his Sixth
Amendment right to confrontation as expressed in Gray v. Maryland, 523 U.S. 185 (1998).

This is the only information Elem gives us with respect to this claim, and it is not enough to
sustain it. Although we liberally construe a prisoner’s pro se section 2255 petition, it remains a
petitioner’s burden to show that he is entitled to habeas relief. United States v. Gholson, No. 02-
C6988, 2003 WL 21466954, *4 (N.D. Ill. June 25, 2003). It is not our job to search the record and
find support for Elem’s claim.

As far as we can tell from what Elem has provided to us, the conversation he complains of
concerned whether the Chicago police or federal agents had searched the ceiling in the house where

Jennings’s family resided and did not involve or refer to anyone but Jennings and his brother. Our

3 In Gray, the Supreme Court held that the prosecution cannot, during a joint trial, introduce a confession of
anontestifying codefendant which names the defendant as a perpetrator where the confession is redacted and the name
of the defendant is replaced by a blank space, the word “deleted” or some symbol. 523 U.S. at 195. The Court did find,
however, that redacted confessions that did not refer directly to the defendant himself: ‘and which required the jury to draw
some inferences to connect the confession with the defendant were still admissible. Jd. at 195-96.

-4-



129 (1993). The sentence Elem received in connection with his convictions is consistent with Deal,
and so his counsel was not constitutionally ineffective for failing to challenge it.

Finally, Elem refers in very general terms to a number of other ways in which both his trial
and appellate counsel erred and says that the cumulative effect of these errors resulted in ineffective
representation in general. Elem says that “counsel unprofessionally failed to timely move for
suppression of evidence material to the conviction and/or sentence of Mr. Elem” (Ground No. 2);
“counsel unprofessionally failed to timely request appropriate jury instructions and to timely object
to insufficient instructions .. . [and] also failed to object to improper argument by the prosecution
and/or ask for curative instructions . . .” (Ground No. 5); “counsel unprofessionally failed to
investigate or present available evidence material to the sentencing of Mr. Elem . . . [and]
unprofessionally failed to object to false and unreliable evidence used to determine Mr. Elem’s
guideline sentencing range and ultimate sentence” (Ground No. 6); “counsel failed to move for
downward departure at sentencing” (Ground No. 7); and “counsel failed to present strongest issues
available for appeal” (Ground No. 9.)

“The cumulative effect of two or more individually harmless errors has the potential to
prejudice a defendant to the same extent as a single reversible error.” Alvarez v. Boyd, 225 F.3d 820,
824 (7" Cir. 2000) (internal quotations and citations omitted). Elem can establish ineffective
assistance of counsel if he can show that “the cumulative effect of counsel’s individual acts or
omissions was substantial enough to meet Stricklana’s test.” Williams v. Washington, 59 F.3d 673,
682 (7" Cir. 1995).

Even though we can consider the cumulative effect of counsel’s errors, we examine each

incidence individually. See Crisp v. Duckworth, 743 F.2d 580, 582 (7" Cir. 1984). Elem has not,

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interstate commerce is “not jurisdictional in the sense that it affects . . . a court’s constitutional or
statutory power to adjudicate a case .. . .”); United States v. Locklear, 97 F.3d 196, 199 (7" Cir.
1996) (challenge to federally insured status of bank goes to sufficiency of evidence). “Proof that the
bank[s] [were] FDIC-insured is simply one of a number of elements that must be either proved by
the government at trial or agreed to by the parties in a stipulation. “ Paschal v. United States, No.
02-C8745, 2003 WL 22462555, at *3 (N.D. Ill. Oct. 30, 2003). Failure to prove an element of a
crime does not impact a court’s exercise of jurisdiction over a case. Jd.

Here, the parties stipulated to the banks’ FDIC-insured status.* This was not, as Elem asserts,
an attempt by the parties to stipulate to subject matter jurisdiction or confer upon this Court subject
matter jurisdiction that did not otherwise exist. FDIC-insured status is one matter to which the
parties can stipulate. See United States y. Knop, 701 F.2d 670, 674 (7 Cir. 1983) (“we fail to
understand why the Government should rely on indirect evidence of FDIC-insured status, when that
status can easily be established directly by ... a stipulation... .”).

We now address whether Elem’s trial counsel was constitutionally ineffective for stipulating
that the banks were insured by the FDIC. Elem argues that his counsel did not know whether the
banks were insured at the time of the robberies and did not conduct a reasonable investigation into
the prosecution’s evidence on this matter. Elem has not, however, provided any evidence that bears
on what his counsel knew or did not know about the banks’ FDIC-insured status or the evidence
available to prove the banks were federally insured. The affidavit Elem attaches to the Addendum

does not address this issue.

4 The stipulation was read to the jury on May 11, 1998. (Record at 291.)

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court of appeals has held that a confession of a nontestifying codefendant may be introduced if it is
properly redacted and an appropriate limiting instruction is given to the jury by the court. See United
States v, Sutton, 337 F.3d 792, 798 (7" Cir. 2003). Elem has not provided us any hint as to how the
conversation implied his involvement in the bank robberies or in what way references to him had
been redacted, At the trial, we instructed the jury:

Certain tape recordings of calls from the Metropolitan Correction Center

were admitted into evidence. You may consider this evidence only with

respect to Odell Jennings. You must not consider this evidence with respect

to Johnelle Elem.
Record at 802. Elem has not provided any detailed support for his claim that the use of the tapes
violated his constitutional rights and so his claim fails. See Jones, 167 F.3d at 1145-46.

The third claim raised by Elem is that his trial attorney rendered ineffective assistance
because he stipulated that the banks that were robbed were insured by the FDIC, thus establishing
subject matter jurisdiction. Elem says that the evidence available to his trial counsel at the time of
trial would not have established that the banks were, in fact, federally insured.

First, Elem is mistaken that the federally-insured status of the banks affects our ability to
exercise subject matter jurisdiction over this case. What is frequently called a “jurisdictional

“ee

element” in criminal cases is “ ‘jurisdictional’ only in the shorthand sense that without [the nexus
with interstate commerce], there can be no federal crime... . It is not jurisdictional in the sense that
it affects a court’s subject matter jurisdiction.” Hugi v. United States, 164 F.3d 378, 381 (7" Cir.
1999) (section 2255 petitioner claimed counsel was ineffective for failing to challenge “jurisdic-
tional” element of use of interstate wires). Even if the government failed to establish the interstate

commerce connection, a district court would not be deprived of subject matter jurisdiction. See

United States v, Martin, 147 F.3d 529, 531 (7" Cir. 1997) (failure to demonstrate nexus with

=5-


these reasons, Elem was not prejudiced by the stipulation that the banks were federally insured.
Absent a showing of prejudice, Elem’s ineffective assistance of counsel claim fails.

Next, Elem claims that he should not have been sentenced to three consecutive terms under
18 U.S.C, § 924(c)’ and that his counsel was constitutionally ineffective for failing to seek to
overturn his sentence on these grounds. The jury found Elem guilty of bank robbery under 18 U.S.C.
§ 2113(a) in connection with three separate bank robberies. For the robberies, he received a 262-
month sentence. Elem was also found guilty of the use of a firearm in connection with each robbery
under 18 U.S.C. § 924(c) and received consecutive sentences of five years for the first robbery and
twenty years for each of the second and third robberies. Elem says that he was subject to double
jeopardy in violation of the Fifth Amendment to the Constitution by the cumulative sentences. He
argues that the robberies were one course of conduct and only one sentence should have been
imposed,

Section 924(c) mandated a five-year sentence in connection with the first robbery conviction
and a twenty-year sentence in the case of a “second or subsequent conviction,” with the sentences
torun consecutively. Each robbery of which he was convicted was to be considered separately. U.S.
SENTENCING GUIDELINES MANUAL, §§ 2B3.1,3D1.2(d) (1997) (multiple counts of bank robbery not
grouped together). The Supreme Court has held that even though the section 924(c) charges are
charged in the same indictment and determined at the same trial as the bank robbery charges, it is
proper that a defendant receive the enhanced twenty-year sentence under section 924(c) on the

second and third counts, with the sentences to run consecutively. See Deal v. United. States, 508 U.S.

5 Section 924(c) of title 18 provides for an additional sentence to be imposed where a person possesses,
brandishes or discharges a firearm during the commission of a violent crime for which he is punished. 18 U.S.C. §
924(c) (West 2000).

~8-


Minute Org Form (06/97)

bf

United States District Court, Northern District of Illinois

Name of Assigned Judge 2 Sitting Judge if Other
or Magistrate Judge Paul E. Plunkett than Assigned Judge
CASE NUMBER 03 C 1957 DATE 8/18/2004
CASE United States of America vs. Johnelle Elem
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
MOTION: of the motion being presented.]
DOCKET ENTRY:
[ q) 0 Filed motion of [ use listing in “Motion” box above.]
2) Oo Brief in support of motion due
(3) o Answer brief to motion due. Reply to answer brief due.
(4) a Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for]on___—sset for _ at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) o Trial[set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OLocal Rule 41.1 COFRCP4I(a\(1) OO FRCP41(a\(2).
ao) of (Other docket entry] | Enter Memorandum Opinion and Order. Defendant Elem’s motion for an
evidentiary hearing is denied. Defendant Johnelle Elem’s amended motion pursuant to 28 U.S.C. § 2255
to vacate his conviction and sentence is denied and this case is dismissed.
4
(il) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required. umber of notices
Notices mailed by judge’s staff.
AtIA
Notified counsel by telephone. = 204
vw | Docketing to mail notices,
v Mail AO 450 form. dosing deputy ingiats
Copy to judge/magistrate judge.
courtroom Os Wa 9] any HOed date mailed notice
cw depuly’s
initials - —
Date/timececeivedin? 14-1
central Clerk's Office mailing deputy initials



however, provided enough detail with respect to his claims to enable us to evaluate counsel’s
performance; he does not explain, in each case, how his counsel’s performance was flawed or how
he was prejudiced by it. Jd, Absent such a description or explanation, Elem fails to meet his burden
with respect to his cumulative effect claim. See Jarrett v. United States, 822 F.2d 1438, 1445 (7" Cir.
1987) (criminal defendant has right to reasonably effective counsel, not perfect counsel); United
States ex rel. Partee v. Lane, 926 F.2d 694, 701 (7" Cir. 1991) (when claiming ineffective assistance
of counsel, petitioner must make specific showing as to how counsel was ineffective). Moreover,
in viewing the trial proceedings and in light of the evidence presented, we cannot conclude that the
performance of Elem’s counsel, considered generally, undermines the “proper functioning of the
adversarial process that the trial court cannot be relied on as having produced a just result.” Crisp,

743 F.2d 580 (quoting Strickland, 466 U.S. at 686). Elem has not sustained his burden on this claim.
Conclusion

For all of the reasons stated above, Elem’s section 2255 motion is denied and this case is

dismissed. His motion for an evidentiary hearing is denied.

ENTER:

UNITED STATES DISTRICT JUDGE
PAUL E, PLUNKETT

DATED: AUG 18 2004

-10-


We do not believe that Elem’s trial counsel’s conduct with respect to this matter was
unreasonable. The first prong of the Strickland test concerns whether counsel’s conduct fell below
an objective level of reasonableness. We view counsel’s performance with a high degree of
deference and without the benefit of hindsight. See Strickland, 466 U.S. at 698. It seems that Elem
bases his assumption about his counsel’s knowledge on the fact that, on May 12, 1998, the
government received a letter from Valerie Best, Assistant Executive Secretary of the FDIC. Best’s
letter was apparently in response to a May 5, 1998 letter written by the government, requesting proof
of the insured status of the banks on the specific dates of the robberies. In her May 12 correspon-
dence, Best encloses copies of Certificates of Proof of Insured Status “certifying that these
institutions were insured depository institutions on the dates in question.” Receipt by the
government of this letter after the date the stipulation was entered into does not, without more, lead
us to conclude that Elem’s counsel did not make a reasonable decision about the necessity of
investigating the banks’ FDIC-insured status. See Paschal, 2003 WL 22462555, at *4 (defense
attorneys owe clients “a duty to make a reasonable investigation or to make a reasonable decision
that makes particular investigations unnecessary”) (quoting Strickland, 466 U.S, at 691).

Even if Elem’s counsel was not reasonable in his decision, Elem has not shown that he was
prejudiced in any way by the decision. See Strickland, 466 U.S. at 694 (petitioner must demonstrate
prejudice such that confidence in outcome of trial is undermined). Elem does not assert that the
banks were not, in fact, insured by the FDIC. In addition, the information provided by Best
demonstrates that they were insured at the time of the robberies. With this information, we have no
doubt that, if Elem’s counsel declined to stipulate to the banks’ insured status, the government would

have been able to demonstrate at trial that the banks were insured at the time they were robbed. For

-7-


would likely have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Elem
must “adequately specify” the conduct that he contends was constitutionally lacking if he is to
prevail. Jones v. United States, 167 F.3d 1142, 1146 (7" Cir, 1999). “[N]aked assertions [of]...
ineffective assistance,” will not sustain a claim. /d. at 1145.

With respect to the first claim, Elem asserts that he advised his trial counsel that three
individuals, Moynette Hayes, Julia Laws and Quintin Miller, had favorable testimony to be used in
his defense, but that trial counsel failed to even contact these individuals to interview them.
Specifically, Elem asserts that Hayes would have testified that Elem and Clarence Anderson,’ one
of Elem’s confederates in the bank robberies, were not friends and that Hayes heard more than once
that Anderson was going to kill Elem. According to Elem, Laws would have testified that Elem and
Anderson never counted money at her house and that Anderson did not come to her house. Elem
says Miller would have testified that Elem was with him at work all day on two of the days that the
robberies were committed.

Elem has not, however, offered any support for these assertions. He has not, for example,
submitted an affidavit from his trial counsel verifying that Elem gave him the information about the
witnesses and that, in fact, he failed to interview any of them. Nor has Elem submitted affidavits
from any of Hayes, Laws or Miller describing the material evidence that interviews with them would
have garnered. Absent such evidence, Elem is entitled to no relief on this claim. See Barry v. United

States, 528 F.2d 1094, 1101 (7" Cir. 1976) (stating that no hearing on section 2255 motion required

2 Anderson, Odell Jennings and Elem were indicted in connection with participating in a series of armed bank
robberies, Anderson pleaded guilty to one count of armed bank robbery and testified before the grand jury that returned
a superseding indictment against Jennings and Elem. Anderson also testified for the government at Jennings’s and
Elem’s trial. United States v. Elem, 269 F.3d 877 (7" Cir. 2001).

-3-



issues that were raised on direct appeal unless there is a showing of changed circumstances nor can
he raise any nonconstitutional issues that he did not raise on appeal. Jd. Morever, with one
exception, Elem 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). The exception is an
ineffective assistance of counsel claim. An ineffective assistance of counsel claim can be raised for
the first time in a section 2255 motion, whether or not the claim could have been raised on direct
appeal. Massaro v. United States, 538 U.S. 500, 504 (2003).

Distilling the arguments made in his pro se motion,' his Addendum to Motion 28 U.S.C. §
2255 (“Addendum”) and his reply, Elem asserts that he was denied ineffective assistance of counsel
in the following ways: (1) counsel failed to investigate and present certain exculpatory evidence at
trial; (2) counsel failed to object to certain tape-recorded conversations admitted as evidence by the
prosecution; (3) counsel improvidently entered into a stipulation regarding the Federal Deposit
Insurance Corporation (“FDIC”) -insured status of the banks that were robbed; and (4) counsel failed
to argue that the sentences Elem received under 18 U.S.C. § 924(c) were unlawful.

Elem also argues that numerous other errors committed at various stages of the criminal
proceedings demonstrate that he was denied competent counsel and warrants relief under section
2255. None of his arguments has any merit.

Elem received ineffective assistance of counsel only if his counsel’s performance fell below

an objective standard of reasonableness and, but for his counsel’s errors, the result of the proceeding

1 Blem was appointed counsel, but no amended section 2255 motion was ever filed.

-2-


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

EASTERN DIVISION
JOHNELLE ELEM, )
)
Petitioner, )
)
v. ) No. 03 C 1957 (97 CR 765-2)
) Paul E. Plunkett, Senior Judge
UNITED STATES OF AMERICA, )
) Poe,
Respondent. ) Dogue

AUG j 9 2004

MEMORANDUM OPINION AND ORDER
In 1998, Johnelle Elem was convicted of various offenses arising from his participation in
several bank robberies. The conviction was affirmed on appeal in 2001. Elem has now filed an
amended 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
Elem is entitled to relief under section 2255 if his “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

y. United States, 26 F.3d 717, 719 (7th Cir. 1994). Thus, Elem cannot raise on this motion any

-1-