guilt as to all Defendants was overwhelming. See id. at **],**6. Francies presents no changed
circumstances to justify revisiting the sufficiency of the evidence of Francies’ crimes. See

MceCleese, 75 F.3d at 1177-78; Belford, 975 F.2d at 313.

Sccond, Francies claims that there was insufficient evidence of a connection with interstate
commerce lo support his Hobbs Act convictions. The Seventh Circuit rejected this argument,
holding that there was ample evidence of a connection between the robberies and interstate
commerce to uphold the conviction. See United States v. Meachum, 1999 WL 511431, at **1; sce
also United States v. Merrero, 299 F.3d 653, 654-56 (7th Cir. 2002) (discussing the jurisdictional
aspects of the Hobbs Act); United States v. Bailey, 227 F.3d 792, 797-99 (7th Cir, 2000) (same).
Section 2255 relief is foreclosed because this issue was decided on direct appeal and there is no
showing of any changed circumstance,

2. Fifth amendment right to remain silent:

francies argues that the Government improperly commented on his silence at trial. During
closing argument, the prosecutor made the following statement about the testimony of Co-Defendant
Baxter Streets:

Ladies and gentlemen, I want to spend a little bit of time talking about the
argument made on behalf of Baxter Streets. Before I do that, I just want to
note that you did not hear one of the Defense attorneys talk about the

testimony of Baxter Streets, and {rom that you can infer that he.....what he
said on the stand was a lic and he was covering up for his buddies.”

(See R. 1, pg. 7, marked 1/5 addendum.) Francies did not raise this argument on direct appeal, so
it is barred unless he can demonstrate cause and prejudice or a fundamental miscarriage of justice.

Sec MeCloese, 75 F.3d at 1177-78; Belford, 975 I'.2d at 313. Francies does neither, so the claim is

defaulted.



outcome is undermined by evidence of deficient attorney performance. See Brown, 2002 WL
2014644, at #12; Morris v. United States, 264 F.3d 726, 727 (7th Cir. 2001).

Francies argues that if he had testified, he would have said that he had no knowledge of the
conspiracy, robberies, Co-Defendant Mecks, or any criminal historics of his othor Co-Defendants.
Francies” argument fails to demonstrate that counsel’s advice fell below objective standards for
reasonable representation. This kind of hindsight based attack is rarcly successful. See Drake, 14
F.3d at 355-57. Inacase like this, where Francies admits that counsel handled all of the proceedings
in an apparent thorough manner (see R. 1, pg. 12), the claim cannot succeed. And as the Seventh
Circuit noted throughout its opinion, the evidence against all Defendants was overwhelming. It is
unlikely that l'rancies’ blanket denial of his involvement would have had any impact on the verdict.

Francies’ second claim, attorney conflict of interest, is governed by a somewhat relaxed
Strickland analysis. Francies must demonstrate that counsel had a conflict of interest, and that the
conflict affected counsel’s representation of Francies, See Mickens v. Taylor, 122 S. Ct.1237, 1240-
46 (2002) (discussing ineffective assistance claims based on conflict of interest). On its face,
Francies’ assertion that counsel suffered from a conflict of interest because he was paid with public
funds, is meritless. ‘he sixth amendment guarantees that felony defendants have the right to the
assistance of counsel at trial, and that if the defendant cannot afford to hire a lawyer, one will be

appointed to represent the defendant. See generally Gideon v. Wainwright, 372 U.S. 335 (1963).

Criminal defendants also have the right to represent themselves at trial, if they choose to do so. See
eg. McKaskle v. Wiggins, 465 U.S. 168 (1984). Francies was represented by appointed counsel,

and concedes that counsel handicd all matters in an apparently thorough manner. Nevertheless,

Francics now feels that counsel’s loyalty was divided because counsel received compensation.



Francies did not raise this argument on direct appeal, so it procedurally defaulted, and he
makes no effort to demonstrate cause and prejudice or a fundamental miscarriage of justice.

See McCleese, 75 F.3d at 1177-78; Belford, 975 F.2d at 313. Even if the issue were not defaulted,

iL is without merit. Evidentiary issues are rarcly a basis for § 2255 relief, and Francies fails to
demonstrate that the Lape violated his constitutional rights,

4. Double jeopardy:

Francies next argues that his multiple convictions under 18 U.S.C, § 924(c) violate his fifth
amendment protections against double jeopardy. The double jcopardy clause of the Fifth
Amendment provides that no person shall “be subject for the same offence to be twice put in

jeopardy... .” U.S. Const. amend. V. “At its root, the Double Jeopardy Clause forbids the
duplicative prosecution ofa defendant for the ‘same offence.’” United States v. Felix, 503 U.S. 378,
386 (1992) (citations omitted). Section 924(c) makes it an offense to use a firearm during the
commission of another, predicate, offense. Francies asserts that he was convicted of two § 924(c)
counts based on the same predicate offense, in violation of his double jeopardy rights. The argument
is without merit

The indictment plainly stated that both § 924(c) counts were based on separate crimes. Count
VI charged I'rancies with a § 924(c) violation. The predicate offense for Count V1 was Count III,
which charged Francies with an attempted armed robbery and civil rights violation that occurred on
November 15, 1996, Count VII charged Francies with a second § 924(c) violation, and had as its

predicate offense an allempted armed robbery that occurred on December 4, 1996, as charged in

Count IV. Thus, contrary to Franeies’ argument, each of his § 924(c) convictions had a separate and

distinct predicate offense. There is no double jcopardy violation



Moreover, the argument is patently without merit. The fifth amendment guarantees a
criminal defendant’s privilege to remain silent at trial. U.S. Const. amend V, The Government
cannot directly comment about a defendant’s decision not to testify. See United States v. Aldaco,
201 13d 979, 987 (7th Cir. 2000). Nor can the Government indirectly comment about a defendant’s
silence at trial, particularly when the Government’s comment is “of such a character that the jury
could only interpret it to be a comment on the defendant silence.” United States v, Benitez, 92 F.3d
528, 535 (7th Cir. 1996); sce also United States v. Alanis, 265 T'.3d 576, 586 (7th Cir. 2001); United
States v. Aldaco, 201 I'.3d at 987. Ifthe court finds that the government's comment was proper, and
there was no prosecutorial misconduct, the analysis ends. See United States v. Benitez, 92 F.3d at
535. But, if there is evidence of misconduct, then the court analyzes the commentary in light of the
full record to determine if the defendant was deprived of a fair trial. Id.

Here, there is no evidence of prosecutorial misconduct. The prosecutor was commenting
about Strects’ testimony, and argued to the jury that it could infer Streets’ guilt and the guilt of Co-
Defendants from Streets’ perjury. The Government did not improperly comment on Francies’
silence, nor did the Government attempt to shift the burden of proof to Francics. This claim is
without merit.

3. Video tape evidence:

Francies asserts that he was prejudiced when the Government played a video tape to impeach
Streets’ testimony. The tape was not introduced into evidence, but was used to rebut Streets’
testimony that he, Streets, did not associate with people who used drugs. The video tape showed

Francies and Streets watching a woman, who appeared to be under the influence of drugs, engage

in sexual acts. Francies now claims that the tape unfairly prejudiced him.



Supp. 2d 971, 973-74 (N.D. LL. 2001) (chambers opinion). Finger pointing among Co-Defendants
is not a sufficient basis on which to grant severance. Sce id. at 974-75. lrancies fails to demonstrate
that the denial of his severance motion compromised one of his specific trial rights, or that the jury
was unable to make a reliable judgment of his guilt. Instead, the jury heard and saw overwhelming
evidence of Francics’ guilt, and convicted him. This claim has no merit.

7, Ineffective assistance of counsel:

Next, Francies puts forth two claims of ineffective assistance ol counsel: (1) counsel
persuaded Francies not to testify; and (2) counsel was compensated by the Government. The court
addresses each claim in tum.

Francies’ first ineffective assistance claim is governed by the familiar standards of Strickland
v. Washington, 466 U.S. 668, 687-88, 694 (1984). Francies must demonstrale that counsel’s
performance was deficient, meaning it fell below objective standards lor reasonably effective
representation. Sce id, at 687-88. The court reviews counsel’s performance deferentially,

parlicularly counsel's choice of strategies. See Drake v. Clark, 14 F.3d 351, 355-57 (7th Cir. 1994),

A habeas petitioner bears a heavy burden in demonstrating that counsel’s performance was deficient

2002 WL 2014644, at *12-20 (7th Cir. Sept. 4, 2002) (granting habeas relief due to ineffectiveness
assistance of counsel). Strickland also requires a showing of prejudice. See Strickland, 466 U.S.
at 694. Francies must also show that, but for the deficient performance, there is a reasonable

probability that the result of the proceedings would have been different. See Strickland, 466 U.S.

at 694. A reasonable probability of a different result will be found if the court’s confidence in the



Minute Order Foro (06797)

“-&

United States District Court, Northern District of Illinois

Name of Assigned Judge arles Sitting Judge if Other
or Magistrate Judge Charles R. Norgle than Assigned Judge
CASE NUMBER 01 C 109 DATE 10/24/2002
CASE UNITED STATES OF AMERICA vs. TYRONE FRANCIES
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g,, plaintitf, defendant, 3rd pacty plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented, |
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) QO Brief in support of motion due
(3) qo Answer bricf to motion duc. . Reply to answer brief duc
(4) Oo Ruling/Hearing on ____ set for at
(5) o Status hearing[held/continued to] [set for/re-sct for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on _ set for _ at _
(7) Oo Trial[sct for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This casc is dismissed |with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) Local Rule 41.1 OFRCP41(aj(1) O FRCP41(a)(2).
ao) 4 {Other docket entry] Tyrone Francies’ motion to vacate, set aside, or correct his sentence
under Title 28, United States Code, Section 2255 is denied.
al) @f [Por further detail see order attached to the original minute order.]
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TW. CONCLUSION
Kor the foregoing reasons, the court denies Francics’ motion under 28 U.S.C. § 2255 to
yacate, set aside, or correct his sentence.
IT1S SO ORDERED.

ENTER:

Dialer

CHARLES RONALD NORGLE, SR Aidue

V4 ~2 Le 2" United States District Court

DATED:



Lawyers do noi work for free, and the fact that appointed counsel was paid by the Government does
not mean that counsel suffered from a conflict of interest. Francies must present some evidence of

an actual conflict of interest, and evidence that the conflict affected counsel’s representation. See

Mickens, 122 $. CL at 1240-46. Francics fails to present evidence of either point.

8. Judicial bias:

Francies asserts that the court was prejudiced against him because many unspecified rulings
were in favor of the prosecution. Judicial bias can be a basis for habeas relief, see e.g. Bracy v.
Gramley, 117. Ct. 1793 (1997), en banc appeal after remand, Bracy v. Schomig, 286 !'.3d 406 (7th
Cir, 2002), but not in this case. Francies defaulted the issue because he did not raise it on direct
appeal, and he fails to demonstrate cause and prejudice or a fundamental miscarriage of justice.
See McCleese, 75 I'.3d at 1177-78; Belford, 975 F.2d at 313. And. again, the issue is without merit.
On direct appeal, the Seventh Circuit analyzed numerous rulings of the court and found only one
harmless error. United States v. Meachum, 1999 WL 511431, at **6. There is no evidence of
judicial bias, and no basis for § 2255 relief.

One point requires additional discussion. Francies argues that during the pre-trial phase, a
magistrate judge granted him pre-trial release, and that decision was overturned by the district judge.
‘Those events do nothing to demonstrate judicial bias, and similarly do nothing to demonstrate that
Francies’ conviction and/or sentence is unconstitutional. See 28 U.S.C, § 2255 4 1.

9, Miscellaneous claims:

Francies makes several additional miscellaneous claims, but he did not raise these claims on

direct appeal, and presents no changed circumstances, causc and prejudice, or fundamental

10



5. Right to confront witnesses:

Francies’ next argument is that he was deprived of his sixth amendment right to confront the
witnesses against him. ‘lhis claim is based on the cross-cxaminations of Jamie Wright and Gatry
Brown, on which the court placed limits. Francies raised this argument on direct appeal, where it
was rejected by the Seventh Circuit. Sce United States v. Meachum, 1999 WT. 511431, at **3-6.
Francics fails to demonstrate that there are any changed circumstances that warrant this court to re-
examine the issue. See Belford, 975 F.2d at 313.

Moreover, the issue is without merit. As the Seventh Circuit held, counsel for all Defendants
had ample opportunity to cross-examine all witnesses. Francies’ counsel repeatedly went into

improper and/or repetitive lines of cross-examination. Sce United States y. Meachum, 1999 WI.

511431, al **3-6. The court was well within its discretion to put limits on counsel to ask proper
questions. Id,

6. Severance:

Francies claims that he should have been tried separately from his Co-Defendants. ‘This issue
was rejected on direct appeal, United States v. Meachum, 1999 WI. 511431, at **1, and in the

absence of changed circumstances, is not proper for § 2255 relief. See Belford, 975 F.2d at 313.

And, like all of Francies’ other arguments, the issue is without merit. Francies insists that
he was found guilty solely because of his association with Co-Defendants. Severance under Federal
Rule of Criminal Procedure 14 is left to the sound discretion of the district court. See Zafiro v.
United States, 506 U.S. 534, 541 (1993). Severance is necessary only if there is a serious risk that
a joint tral would compromise one of the defendant’s specific trial rights, or if the jury would be

unable to make a reliable judgment of guilt or innocence. See United States y, Hanhardt, 151 F.



Section 2255 motions are subject to various bars, including that of procedural default. A §
2255 proceeding is “‘neither a recapitulation of nor a substitute for a direct appeal.’” McCleese v.

United States, 75 F.3d 1174, 1177 (7th Cir, 1996) (quoting Belford y. Uni

cl States, 975 1'.2d 310,
313 (7th Cir. 1992), overruled on other grounds, Castellanos v. United States, 26 F.3d 717 (7th Cir.

1994)); compare Reeves v. United States, 255 F.3d 389, 391-94 (7th Cir, 2001) (reviewing a § 2255

motion where the petitioner voluntarily dismissed his direct appeal). Thus, a § 2255 motion cannot
raise: (1) issucs that were raised on direct appeal, unless there is a showing of changed
circumstances; (2) nonconstitutional issues that could have been raised on direct appeal, but were
not; and (3) constitutional issues that were not raised on direct appeal, Belford, 975 ['.2d at 313.

‘There are two exceptions to the procedural default rule: (1) ifthe movant demonstrates cause
for failing to raise the issue and actual prejudice resulting therefrom; or (2) the court’s refusal to
consider the constitutional issue would result in a fundamental miscarriage of justice, which requires
a showing of actual innocence. See Belford, 975 F.2d at 313 (collecting authority); see also
McCleese, 75 F.3d at 1177-78 (discussing fundamental miscarriage of justice). With these principles
in mind, the court examines Francies’ motion.

1. Insufficient evidence:

Francies alleges two different claims based on insufficient evidence. First, Francies asserts
that there was little or no evidence of his guilt. Instead, Francies claims that he was convicted
because of his association with the Co-Defendants. l’rancics denics his involvement with the crimes,

and asseris that all of the criminal activity was performed by the Co-Defendants. The Seventh

Circuit considered and rejected this argument on direct appeal. See United States vy. Meachum, 1999

WL 511431, at **1. Indeed, the Seventh Circuit commented more than once that the evidence of



examination of the same witness. The Seventh Circuit rejected Francies’ arguments and affirmed

the conviction in all respects. See United States v. Meachum, 182 I'.3d 923 (7th Cir. 1999) (table

order, text available on Westlaw at 1999 WL 511431 (7th Cir. July 15, 1999)),

Francies now secks § 2255 relief, raising numerous issues that overlap cach other. The court
consolidates and interprets Francies’ arguments as: (1) insufficient evidence, (2) improper
commentary on Francies’ silence at trial; (3) erroneous use of video tape evidence; (4) the § 924(c)
convictions violate the fifth amendment protection against double jeopardy; (5) violation of the sixth
amendment right to confront witnesses; (6) erroneous denial of severance; (7) ineffective assistance
of counsel; (8) biased trial judge; and (9) miscellancous other issues. ‘he Government argues, and
the court agrees, that all of these claims are cither procedurally defaulted or without merit.

II. DISCUSSION

Section 2255 allows a person convicted of a federal crime to vacate, sct aside, or correct his
sentence. The relief is available only in limited circumstances, such as where an error is
jurisdictional or of Constitutional magnitude. The statute states:

A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which imposed the sentence
to vacate, set aside or correct the sentence,

28 U.S.C. § 2255 § 1. Ifthe court determines that any of these grounds exists, it “shall vacate and

set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or

correct the sentence as may appear appropriate.” 28 U.S.C. § 2255 4 2.



TN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITLD STATES, )
)
Respondent, )
) No. 01 C0109
vs. )
) HONORABLE CHARLES R. NORGIE
TYRONE I'RANCIES, )
)
Movant. y

OPINION AND ORDER
CHARLES R. NORGLE, District Judge

Before the Court is Tyrone Francies’ motion to vacate, set aside, or correct his sentence under

28 U.S.C. § 2255, For the following reasons, the motion is denied.
1. BACKGROUND

Francies is a former Chicago Police Officer. While he was a member of the Police
Department, Francies and his Co-Defendants concocted and carried out a scheme of tracking down
drug dealers and robbing them of money and drugs, rather than arresting them, I‘rancics was indicted
on numerous charges arising out of this criminal enterprise, including violations of the Hobbs Act,
18 U.S.C. § 1951, charges relating to the use of a firearm during a crime of violence in violation of
18 U.S.C, § 924(c), and possession of drugs with intent to deliver.

After a lengthy trial, a jury convicted Francies and his Co-Defendants. lrancies appealed his
conviction, arguing: (1) joinder of all Co-Defendants was improper; (2) there was insufficient
evidence to convict; (3) jury instructions concerning § 924(c) were erroneous; (4) the application of
multiple § 924(c) convictions was erroneous; and (5) the court made crroneous evidentiary rulings

concerning the testimony of a Government witness and improperly limited impeachment and cross-