United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted February 21, 2017*

Decided February 21, 2017 

Before 

DIANE P. WOOD, Chief Judge 

RICHARD A. POSNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 16-2296 

ERNEST FRANKLIN CLARK, 

Petitioner-Appellant, 

v. 

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

 Appeal from the United States District 

Court for the Eastern District of Wisconsin.

No. 15-CV-726-JPG 

J. Phil Gilbert, 

Judge. 

O R D E R 

Ernest Clark, a federal prisoner serving 162 years after he and his cohorts robbed 

six banks at gunpoint in the Milwaukee area, appeals from the denial of his collateral 

challenge to his convictions, see 28 U.S.C. § 2255. The district court granted a certificate of 

appealability authorizing Clark to pursue in this court a claim that appellate counsel was 

constitutionally ineffective for not raising issues about the government’s theory of 

accomplice liability and the presiding judge’s physical absence after the jury that heard 

 

*

 We have agreed to decide this case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. See FED. R. APP. P. 34(a)(2)(c). 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 16-2296 Page 2 

Clark’s case began deliberating. The certificate of appealability also authorizes Clark to 

pursue a claim that his multiple convictions under 18 U.S.C. § 924(c) are void in light of 

Johnson v. United States, 135 S. Ct. 2551 (2015). We reject his contentions and affirm the 

judgment. 

During the first five robberies, Clark forced a bank employee to retrieve money 

from the vault while an accomplice held a gun on other employees. But in the final 

robbery, Clark carried a gun himself. Milwaukee police caught him several months after 

that robbery, and he served time in state custody before a federal grand jury indicted 

him on six counts of armed bank robbery, 18 U.S.C. § 2113(a), (d), and six counts of using 

a firearm in furtherance of a crime of violence, id. § 924(c). 

Clark represented himself with help from appointed standby counsel. After a 

four-day trial, a jury found him guilty on all counts. Judge Gilbert, from the Southern 

District of Illinois, presided over the trial in Milwaukee by special designation, 

see 28 U.S.C. § 292(b). But the judge experienced back problems during the trial, so after 

hearing closing arguments and instructing the jury, he returned home to Illinois to seek 

medical assistance. He arranged for Judge Clevert, who at that time was the chief judge 

of the Eastern District of Wisconsin, to sit in the courtroom and assist him in managing 

any issue that might arise. Judge Gilbert remained available by phone and in fact 

resolved telephonically an issue concerning the jury’s desire to review video evidence. 

When the jury rendered its verdicts, Judge Gilbert presided via speakerphone with 

Judge Clevert’s assistance. Several months later, Judge Gilbert sentenced Clark (in 

person in Milwaukee) to a total of 1,951 months’ imprisonment: 1,800 months for the six 

§ 924(c) charges (the minimum possible because Clark already had a prior conviction 

under § 924(c), and each new one carried a consecutive, statutory minimum of 

300 months) and 151 months for all of the bank robberies (the low end of the guidelines 

range for those charges). 

Clark’s standby counsel was appointed by this court to represent him on direct 

appeal. In that case the lawyer raised novel issues under both the Speedy Trial Act, 

see 18 U.S.C. § 3161(b), and the Interstate Agreement on Detainers, see 18 U.S.C. app. 2, 

§ 2, relating to the period Clark was in state custody before his arraignment on the 

federal charges. See United States v. Clark, 754 F.3d 401, 405–10 (7th Cir. 2014). Counsel 

also challenged a warrant authorizing the use of a buccal swab to obtain Clark’s DNA. 

Id. at 410. We affirmed Clark’s convictions. 
No. 16-2296 Page 3 

Clark then filed the § 2255 motion underlying this appeal. He argued that his 

appellate counsel was ineffective for not raising a litany of issues, including 

Judge Gilbert’s absence from the courthouse at the end of the trial and the government’s 

reliance on a theory of aiding and abetting to obtain convictions on five of the six § 924(c) 

counts. Clark later sought permission to supplement his § 2255 motion with an 

additional claim: that the § 924(c) convictions must be vacated on the ground that after 

Johnson, the bank robberies underlying those convictions no longer qualify as “crimes of 

violence” under § 924(c). 

Judge Gilbert denied the § 2255 motion and the motion to amend, reasoning that 

all of Clark’s existing claims lack merit and that the proposed Johnson claim would be 

futile. But Judge Gilbert granted a certificate of appealability authorizing Clark to 

contest the denial of his motion to add a Johnson claim, and also to pursue his theories 

that appellate counsel was constitutionally ineffective in not raising issues about the 

judge’s absence after the jury began deliberating and the government’s theory of 

accomplice liability for the § 924(c) charges. 

We first address whether Judge Gilbert should have allowed Clark to add a claim 

under Johnson, which was decided (and made retroactive by Welch v. United States, 

136 S. Ct. 1257 (2016)) after he filed his § 2255 motion. Each of the § 924(c) counts alleged 

that Clark had used a gun in furtherance of a crime of violence, i.e., a specific armed 

bank robbery. The statute defines “crime of violence” to mean an offense that either “has 

as an element the use, attempted use, or threated use of physical force against the person 

or property of another” or else “by its nature, involves a substantial risk that physical 

force against the person or property of another may be used in the course of committing 

the offense.” 18 U.S.C. § 924(c)(3). We recently held that the second of these two options, 

known as the “residual clause,” is unconstitutionally vague in light of Johnson’s holding 

that a similar residual clause in the Armed Career Criminal Act, 18 U.S.C. 

§ 924(e)(2)(B)(ii), was unlawfully vague. United States v. Cardena, 842 F.3d 959, 995–96 

(7th Cir. 2016) (citing Johnson, 135 S. Ct. at 2557). So to be a crime of violence, armed bank 

robbery must qualify under the surviving “elements clause,” see 18 U.S.C. § 924(c)(3)(A). 

Clark argues that it does not, but we held to the contrary in United States 

v. Armour, 840 F.3d 904, 907–09 (7th Cir. 2016). In that case, which involved a botched 

attempt to rob a bank at gunpoint, we rejected the precise argument Clark makes here: 

that robbery by “intimidation” (one of the ways armed bank robbery can be committed) 

does not have as an element the use, attempted use, or threatened use of physical force. 

See id. at 908–09. We concluded that “intimidation means the threat of force,” id. at 909, 
No. 16-2296 Page 4 

and thus even an attempt to commit an unarmed bank robbery is a crime of violence 

under the elements clause. For that reason Judge Gilbert was correct in concluding that 

adding a Johnson claim would be a futile endeavor. 

Next we consider Clark’s theories of ineffective assistance by appellate counsel. 

To prevail on a claim that appellate counsel’s performance was constitutionally 

deficient, Clark must show not only that the claims omitted from his direct appeal would 

have been meritorious, but that they were “significant and obvious” and “clearly 

stronger” than the issues counsel did raise. See Blake v. United States, 723 F.3d 870, 888 

(7th Cir. 2013). And Clark also would have to establish that counsel’s choice to exclude 

the additional issues prejudiced him, i.e., that it’s reasonably probable that including the 

omitted issues would have changed the outcome of his direct appeal. See Stallings 

v. United States, 536 F.3d 624, 627–28 (7th Cir. 2008). We conclude that Clark has not met 

this demanding standard for either theory of ineffective assistance that Judge Gilbert 

certified for appeal. 

First, Clark argues that appellate counsel should have raised a claim about 

Judge Gilbert’s absence while the jury deliberated and when it returned its verdicts. But 

Clark had not objected to Judge Gilbert monitoring the deliberations from his home 

district via speakerphone, so our review would have been for plain error. See United 

States v. Olano, 507 U.S. 725, 733–36 (1993); United States v. Burns, 843 F.3d 679, 687–88 

(7th Cir. 2016). 

It is not clear to us that, under the circumstances, the procedure followed by 

Judges Gilbert and Clevert was erroneous at all. See United States v. Kone, 307 F.3d 430, 

441–43 (6th Cir. 2002) (concluding that substitution of second judge to monitor 

deliberations and receive verdict via speakerphone after presiding judge left district to 

attend judicial conference was not structural error that could relieve defendant, who did 

not object to arrangement, from having to establish prejudice from presiding judge’s 

absence); United States v. Arnold, 238 F.3d 1153, 1154–56 (9th Cir. 2001) (concluding that 

presiding judge did not err by leaving courthouse to attend judicial conference during 

jury deliberations and, without objection from any party, handling jury question over 

phone); cf. Riley v. Deeds, 56 F.3d 1117, 1119–21 (9th Cir. 1995) (concluding that judge’s 

“complete abdication of judicial control” during jury deliberations amounted to 

structural error). And without a plain error, this argument would have been weak on 

appeal, see United States v. Cureton, 845 F.3d 323, 326 (7th Cir. 2017) (noting that 

defendant loses on plain-error review if question is “at least debatable”), especially since 

Clark does not even suggest that he was prejudiced. See Burns, 843 F.3d at 687–88. 
No. 16-2296 Page 5 

Judge Gilbert ably dealt with a jury question over the phone and “presided 

telephonically” over Judge Clevert’s physical receipt of the jury’s verdicts, see United 

States v. Brown, 757 F.3d 183, 191–93 (4th Cir. 2014) (concluding that judge’s absence 

during deliberations was harmless because “nothing else of note” happened while judge 

was gone); Kone, 307 F.3d at 443. Moreover, the evidence used to convict Clark was 

overwhelming. See United States v. Solon, 596 F.3d 1206, 1211–13 (10th Cir. 2010) 

(concluding that judge’s absence during closing arguments was harmless because 

nothing irregular happened and government’s case against defendant was “strong”). We 

therefore agree with Judge Gilbert that an appellate claim on this ground would not 

have been clearly stronger than the novel issues that counsel did raise on appeal. 

See Blake, 723 F.3d at 888. 

The same is true concerning the other theory of ineffective assistance certified for 

appeal. Clark insists that appellate counsel should have raised a claim under Rosemond 

v. United States, 134 S. Ct. 1240, 1248–52 (2014), which holds that a defendant must have 

had “advance knowledge” that a gun would be used in furtherance of a crime of 

violence or drug trafficking offense in order to be convicted under § 924(c) on a theory 

that he aided and abetted another’s use of the gun. In the first five robberies, Clark 

retrieved money from the vault while an accomplice held a gun on bank employees. 

(During the final robbery, Clark himself carried a gun into the bank.) Clark argues that 

the government failed to prove that he knew before entering the banks that the 

accomplice would be armed. Because Rosemond was decided while Clark’s direct appeal 

was pending, the jury was not instructed on this requirement of advance knowledge. 

But as Judge Gilbert recognized, the possibility that the jury never considered this 

subject would not have supported reversal. As the judge noted, once Clark saw his 

confederate use a gun in the first robbery, he obviously knew that a gun would be used 

in later robberies, see Rosemond, 134 S. Ct. at 1250 n.9, making this argument 

preposterous as to all but, arguably, the first robbery. And as in United States v. Lawson, 

810 F.3d 1032, 1041–42 (7th Cir. 2016), there is no way that the jury could have believed, 

even as to the first robbery, that Clark lacked advance knowledge that a gun would be 

used. Ample evidence, including surveillance footage and testimony from bank 

employees and Clark’s accomplices, showed that he knew of and endorsed a plan for 

someone who entered the bank to be armed. In fact, the driver of the getaway car in the 

first five robberies testified that he and Clark specifically had recruited their armed 

accomplice to “hold down the floor” of the bank at gunpoint so that Clark could enter 

the vault instead of simply taking money from teller drawers. Just as in Lawson, we 

would have reviewed Clark’s claim for plain error because he never objected to the jury 
No. 16-2296 Page 6 

instructions about aiding and abetting, and we would have concluded that the Rosemond

error in this case did not prejudice him. See id. at 1041–42. Appellate counsel therefore 

was not deficient for forgoing this claim. See Warren v. Baenen, 712 F.3d 1090, 1104 

(7th Cir. 2013) (“Counsel is not ineffective for failing to raise meritless claims.”). 

That resolves the matters included in the district court’s certificate of 

appealability, but Clark also points to a number of additional ways in which, he says, 

appellate counsel rendered ineffective assistance. Although we may treat Clark’s 

inclusion of these additional contentions as an implicit request to expand the scope of 

the certificate, Rittenhouse v. Battles, 263 F.3d 689, 693 (7th Cir. 2001); cf. Peterson v. Douma, 

751 F.3d 524, 529–30 (7th Cir. 2014) (noting that court should only rarely allow parties to 

modify certificate of appealability by implication), we decline to do so. We have 

examined the remainder of Clark’s theories of appellate counsel’s ineffectiveness, and 

we conclude—for substantially the reasons given by Judge Gilbert—that none of these 

theories merits further discussion. 

The judgment of the district court denying the § 2255 motion is AFFIRMED.