The Honorable Sarah Evans Barker, United States District



Court for the Southern District of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3183

BYRON BLAKE,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:09-cv-555-GPM—G. Patrick Murphy, Judge.

ARGUED JANUARY 22, 2013—DECIDED JULY 25, 2013

Before RIPPLE and ROVNER, Circuit Judges, and BARKER,

District Judge.



BARKER, District Judge. This appeal brought by

Petitioner Byron Blake (“Blake”) seeks our review of the

district court’s denial of his habeas petition, brought

pursuant to 28 U.S.C. § 2255 to challenge his convic-
2 No. 11-3183

tions and sentence. Blake’s primary legal issue is that

each of his three (actually four) prior attorneys, respectively, subjected him to ineffective assistance during

the various stages of his prosecution and appeal.

Resolving these claims requires a detailed factual explication, but the controlling legal principles reflect well

settled law. Having carefully reviewed Blake’s claims,

we are persuaded that the District Court’s denial of

his petition for habeas relief was well founded; thus,

we affirm the ruling(s) below.

I. BACKGROUND

On October 19, 2006, a federal grand jury convened in

the Southern District of Illinois returned a one-count

indictment against Blake and a co-defendant charging

them with the offense of conspiracy to distribute and

possess cocaine in violation of 21 U.S.C. § 846. Blake

retained attorneys Frank R. Fabbri (“Fabbri”) and Nick A.

Zotos to represent him, and they entered their appearances on October 30, 2006. A trial date was initially

set for January 9, 2007, well within the seventy days

required by the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq.

Unbeknownst to Blake (and apparently only to Blake)

at the time, Mr. Fabbri was, himself, under criminal

investigation by federal law enforcement officers for a

felony offense unrelated to the charges against Blake.

To avoid prosecutive conflicts of interest, the Fabbri

investigation was being supervised by an assistant

United States Attorney from the Central District of Illi-
No. 11-3183 3

nois. Blake’s case was overseen by Assistant United States

Attorney Ranley Killian in the Southern District of Illinois.

At the time the Blake prosecution commenced, AUSA

Killian was apparently aware that an ongoing criminal

investigation was underway targeting Mr. Fabbri, but

Killian’s knowledge was limited since he and the other

prosecutors in his district had been “screened off” from

the Fabbri investigation to avoid conflicts of interest. The

record reflects that Killian possessed no information

regarding the merits of the Fabbri investigation.

However, he and certain other AUSAs from the

Southern District of Illinois had been informed that

there was a possibility that they would be called to

testify as witnesses in the Fabbri prosecution, if an indictment were returned and the case went to trial. Blake

maintains but without citing any evidentiary support

that despite the “screening off” of the Southern District

of Illinois prosecutors from the Fabbri prosecution, the

lawyers had nonetheless communicated with one another about his case as well as the Fabbri investigation.

In the absence of any evidence to corroborate his

suspicion, we treat this assertion as merely that – a suspicion.

Approximately one week following the entry by

Mr. Fabbri of his appearance on behalf of Blake, that is,

on November 8, 2006, Blake submitted to a proffer

session with the government investigators which interview had been arranged or at least consented to by his

counsel. Blake’s co-defendant also had participated in a

proffer session with law enforcement agents six days
4 No. 11-3183

A-02. 1

prior. Blake points out that his proffer session occurred 1

before Mr. Fabbri had conducted a review of the government’s discovery materials, so Mr. Fabbri’s advice that

he submit to that interview apparently was based

simply on the nature of the allegations asserted in the

indictment against Blake, or Mr. Fabbri’s sense of the

strength of the government’s case or, perhaps, because

Blake’s co-defendant had already done likewise, or some

combination of these factors. The record is undeveloped

as to Mr. Fabbri’s thinking or intentions.

On December 15, 2006, Mr. Fabbri filed a motion

to continue the January 9, 2007 trial date. On December 18th, at a final pretrial conference conducted by the

district judge, Blake, apparently learning for the first time

that his counsel was seeking a continuance of the trial,

emphatically objected to any continuance, stressing that

he absolutely wanted to go to trial on January 9th, as

currently scheduled. Faced with his client’s objection,

Mr. Fabbri withdrew the motion for continuance.

Following the pretrial conference on December 18,

2006, AUSA Killian learned that an indictment of Mr.

Fabbri was imminent, prompting him to immediately

withdraw from further responsibility for or involvement

in Blake’s prosecution. AUSA Killian was replaced on

the Blake prosecution by AUSAs Garrison and Boyce.

Two days thereafter, on December 20, 2006, the two

newly assigned AUSAs filed a sealed motion with the

district court seeking a judicial determination as to
No. 11-3183 5

Respondent-Appellee’s App’x at 1. 2

Respondent-Appellee’s App’x at 3. 3

whether Mr. Fabbri’s representation of Blake presented a

conflict of interest. In that motion, the government stated

that it “believe[d] that Attorney Fabbri has an actual, or at

least a significant potential conflict of interest in representing Byron Blake,” and thus it brought the issue to 2

the judge’s attention seeking a determination as to the

nature and extent of the conflict, if any. The government

also stated in its motion that while the motion could

have been brought “at an earlier point in time,” the government “until recently believed that the case was in

a posture where there was more time prior to trial of

this matter, and that the investigation of Attorney

Fabbri would have proceeded to a prosecution by that

point in time which would likely have self-resolved

the issue.”3

On December 19, 2006, the newly assigned prosecutors

filed a sentencing enhancement notification under 21

U.S.C. § 851(a), informing the court (and Blake) of the

government’s intention to invoke at sentencing Blake’s

prior controlled substance offense conviction, if a conviction ensued.

The conflict of interest motion filed by the government was promptly considered by the district judge at

a hearing convened on December 28, 2006. Prior to addressing the issues raised in the sealed motion filed by

the government, while Mr. Fabbri was still counsel of

record, the district judge appointed attorney Steven V.

Stenger to represent Blake for purposes of that hearing.
6 No. 11-3183

A-56. 4

Before the motion could be addressed by the court, however, Mr. Fabbri moved to withdraw as Blake’s counsel,

which request the court granted. Mr. Stenger’s appointment to represent Blake was then expanded by the judge

to include all matters related to his defense. Mr. Stenger

stated to the court that he intended to file a motion

seeking Blake’s release on bond pending trial. In light of

Mr. Stenger’s proposed filing, the court set a bond

hearing for January 9, 2007, which was, coincidentally,

the same date as Blake’s original trial setting.

At the December 28th hearing, the district judge also

reset Blake’s trial for April 17, 2007, to reflect the change

in defense counsel and the need for additional preparation time for the trial. When counsel for the government

inquired of the district judge whether the time period

between the filing of their conflict of interest motion

and the January 9, 2007 bond hearing would be

tolled under the Speedy Trial Act (“the Act”), the judge

temporized, saying, “I don’t know. This is an unusual

situation.“ No such finding was ever made by the 4

district judge.

It is likely that one of the things that made the situation

“unusual” in the judge’s mind was that approximately

eight months earlier he had been informed of a similar

allegation of a conflict of interest on the part of Mr. Fabbri

in another criminal prosecution. On that occasion, the

conflict issue was resolved without any direct involvement by the district court, which led the judge to assume
No. 11-3183 7

A-2, A-4. 5

A-4. 6

that Mr. Fabbri apparently had had no conflict of interest

after all. When the conflict issue arose in Blake’s case, the

district judge recalled the prior situation, but, because

that defendant elected to proceed with Mr. Fabbri as his

counsel, he “just assumed that the matter had resolved

itself one way or the other.” In neither case was the

district judge required to make an inquiry himself or

a ruling.5

During Blake’s January 9, 2007 bond hearing, the government again requested that the time period between

the filing of the bond reduction motion by Defendant

and the date of that hearing be deemed excludable

under the Speedy Trial Act calculations based on an

“ends of justice” finding by the district court. The judge,

however, again refrained from entering that finding,

stating that “[a]pparently everyone was aware of this

situation, but it was only when the defendant jumped

up and said he wanted to go to trial in ten days that

the motion comes.” As an alternative to the Speedy 6

Trial Act finding by the judge, the government sought

an order setting Blake’s trial for a date on or before

March 12, 2007. At the February 26, 2007, hearing on the

government’s motion, Blake waived his right to a jury

trial and consented to his attorney’s (Stenger) plan to

file a series of pretrial motions. The district court thus

rescheduled the bench trial for March 23, 2007 and

denied as moot the government’s motion for speedy trial.
8 No. 11-3183

On February 28, 2007, Mr. Stenger filed two discovery

motions and two motions to suppress evidence. On

March 1, 2007, Mr. Stenger also filed a sealed motion

to dismiss the indictment.

On March 5, 2007, a hearing was conducted on these

defense motions during which the judge ruled (and in

which order the government acquiesced) that any

evidence supplied by Blake in his proffer to law enforcement agents during the time he was represented by

Mr. Fabbri was to be excluded at trial and not otherwise

used against him. However, the Court refused to bar

the testimony of Blake’s co-defendant or to exclude

any statements made by Blake prior to Mr. Fabbri’s

appearance in the case. On March 20, 2007, Mr. Stenger

moved to continue the March 23rd trial to allow time to

review what he described as voluminous discovery, on

which motion the judge set a hearing for March 23, 2007.

Two days prior to that hearing, on March 21, 2007, the

government filed a superseding indictment against

Blake adding two narcotics-related offenses.

At the March 23rd hearing on Defendant’s motion to

continue the trial, Blake inquired about the impact of the

superseding indictment on his trial date. Ultimately,

Blake wound up withdrawing his consent to his

counsel’s previously requested continuance and waived

the Act’s 30-day allotment of time to prepare for trial on

the two new charges. Blake was arraigned on the new

charges and demanded a jury trial on all counts,

rescinding his prior waiver of a jury. Trial was set for

March 27, 2007 and commenced on that date, and two
No. 11-3183 9

After pleading guilty to an information charging him with 7

failure to file a currency transaction report, Mr. Fabbri was

convicted and sentenced to eighteen months of incarceration

followed by two years of supervised release, a $40,000 fine,

$36,000 in restitution, and the $100 special assessment. As

previously noted, that case was prosecuted by an AUSA

assigned to and supervised by the U.S. Attorney for the adjoining judicial district, the Southern District of Illinois

having been “screened off” from the investigation into

Fabbri’s conduct by the Department of Justice.

days later, on March 29, 2007, the jury returned verdicts

of guilty on all counts. On July 16, 2007, Blake was sentenced, and his conviction and sentence were affirmed

by our court following his direct appeal. United States

v. Blake, 286 F. App’x 337 (7th Cir. 2008).7

On July 23, 2009, Blake timely filed his § 2255 petition,

claiming that his attorneys were ineffective, more particularly that: (1) Mr. Fabbri had a clear conflict of

interest based on his status as a target of an ongoing

criminal investigation and that he and the government

improperly hid Mr. Fabbri’s conflict of interest so

they could conspire together to Blake’s disadvantage;

(2) Mr. Stenger improperly failed to move for dismissal

of the charges against Blake based on violations of the

Speedy Trial Act; and (3) Blake’s (two) appellate

counsel were ineffective in failing to raise the violation of Blake’s Sixth Amendment right to counsel of his

choosing following Mr. Fabbri’s withdrawal and the

district court’s appointment of new counsel. The district

court denied Blake’s § 2255 petition, finding that: (1) while
10 No. 11-3183

the failure to disclose the conflict of interest was “unfortunate,” it did not adversely affect the outcome of the

trial; (2) several pretrial motions filed by both sides

tolled the time limits of the Act, thereby eliminating

any basis to assert that the Speedy Trial Act was

violated; and (3) Mr. Fabbri’s withdrawal as Blake’s

attorney was proper, given Mr. Fabbri’s conflict of

interest and that, when given the opportunity to waive

the conflict, Blake declined to do so; appellate counsel

was therefore not ineffective in failing to challenge

Mr. Fabbri’s withdrawal.

On July 22, 2011, Blake filed a notice of appeal from

the trial court’s denial of his § 2255 petition and a request

for a Certificate of Appealability (“COA”). The district

court denied Blake’s request on September 26, 2011.

Blake appealed the district court’s denial of the COA to

the Seventh Circuit on October 31, 2011. On February 3,

2012, we granted Blake’s request for a COA, directing

counsel to address Blake’s claims of ineffective assistance

of counsel and his counsels’ handling of his speedy

trial rights.

II. DISCUSSION

Blake’s appeal raises three claims of ineffective

assistance of counsel: first, the ineffective assistance of

his initial attorney (Mr. Fabbri); next, the ineffective

assistance of his trial attorney (Mr. Stenger), who was

appointed to represent Blake after Mr. Fabbri withdrew;

and finally, the ineffective assistance of his third set

of attorneys (Messrs. Blegen and Bradstrader), who

represented him on his direct appeal.
No. 11-3183 11

A. LEGAL STANDARDS GOVERNING INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

GENERALLY

Blake’s § 2255 claims are based on the Sixth Amendment. Relief under this statute is available only in extraordinary situations, such as an error of constitutional

or jurisdictional magnitude or where a fundamental

defect has occurred which results in a complete miscarriage of justice. Prewitt v. United States, 83 F.3d 812, 816

(7th Cir. 1996); Barnickel v. United States, 113 F.3d 704, 705

(7th Cir. 1997). The Sixth Amendment to the Constitution

provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel

for his defence.” U.S. CONST. amend. VI. This right to

assistance of counsel encompasses the right to effective

assistance of counsel. Watson v. Anglin, 560 F.3d 687,

690 (7th Cir. 2009) (citations omitted).

A party asserting ineffective assistance of counsel

bears the burden of establishing two elements: (1) that

his trial counsel’s performance fell below objective standards for reasonably effective representation, and (2) that

counsel’s deficiency prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 687-88 (1984); United States v.

Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v.

United States, 574 F.3d 455, 457 (7th Cir. 2009).

To satisfy the first element of the Strickland test,

appellant must direct the Court to specific acts or omissions by his counsel. Wyatt, 574 F.3d at 458 (citation

omitted). In that context, the Court considers whether in

light of all the circumstances counsel’s performance was
12 No. 11-3183

outside the wide range of professionally competent

assistance. Id. The Court’s assessment of counsel’s performance is “highly deferential[,] . . . indulg[ing] a strong

presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance . . . .”

Strickland, 466 U.S. at 689; accord Wyatt, 574 F.3d at 458.

Further, counsel’s performance is to be evaluated in

light of the discretion properly accorded an attorney to

develop appropriate trial strategies according to the

attorney’s independent judgment, given the facts of

the case, at least some of which may not be reflected in

the trial record. See Strickland, 466 U.S. at 689-690. Courts

are admonished not to become “Monday morning

quarterback[s]” in evaluating counsel’s performance.

Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).

To satisfy the second Strickland element, appellant

must show that there is a reasonable probability that, but

for counsel’s errors, the result of the proceedings would

have been different, such that the proceedings were

fundamentally unfair or unreliable. Jones, 635 F.3d at 915

(citations omitted); Adams v. Bertrand, 453 F.3d 428, 435

(7th Cir. 2006). “A reasonable probability is defined as

one that is sufficient to undermine confidence in an

outcome.” Adams, 453 F.3d at 435 (citing Strickland, 466

U.S. at 694).

An appellate court reviews a district court’s denial of

a § 2255 petition de novo as to issues of law. Galbraith v.

United States, 313 F.3d 1001, 1006 (7th Cir. 2002) (citing

Tezak v. United States, 256 F.3d 702, 712 (7th Cir. 2001)).

Factual findings are reviewed for clear error. Id. Because
No. 11-3183 13

the district court here denied Blake’s § 2255 petition

without conducting an evidentiary hearing, Blake

contends (without citation to any controlling authority)

that his claims should be reviewed for an abuse of discretion. We do not regard that as a correct statement

of law, so we shall apply the clear error/de novo

principles of review referenced above.

B. INEFFECTIVE ASSISTANCE BASED UPON

ATTORNEY FABBRI’S CONFLICT OF INTEREST

Blake contends that he was deprived of his Sixth Amendment right to effective assistance of counsel due to the

conflict of interest of his initial attorney, Mr. Fabbri, who,

he maintains, was in cahoots with the government in

an effort to gain an advantage in his own prosecution,

rather than to advance only Blake’s interests. Our court

held in Spreitzer v. Peters, 114 F.3d 1435 (7th Cir. 1997) that

the issue of whether an attorney has engaged in a

conflict of interest in representing his client involves both

questions of law and of fact. Id. at 1450. Thus, we apply

a de novo standard of review. Enoch v. Gramley, 70 F.3d

1490, 1496 (7th Cir. 1995) (citation omitted), cert. denied,

519 U.S. 829 (1996).

The Sixth Amendment right to effective assistance of

counsel encompasses “a correlative right to representation that is free from conflicts of interest.” Wood v. Georgia,

450 U.S. 261, 271 (1981) (citing Cuyler v. Sullivan, 446

U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475, 481

(1978)); accord United States v. Cirrincione, 780 F.2d 620, 624
14 No. 11-3183

(7th Cir.1985) (citations omitted). It is well settled

that “[c]riminal defendants are guaranteed effective

assistance of counsel, and have the right to representation free from conflict of interest, at all stages of the

proceedings against them.” United States v. Lafuente,

426 F.3d 894, 897 (7th Cir. 2005) (citing Hall v. United

States, 371 F.3d 969, 973 (7th Cir. 2004)).

Two frameworks exist for analyzing ineffective

assistance of counsel claims based on a conflict of interest

by defense counsel. One framework applies if defense

counsel labored under an “actual” conflict of interest.

See Cuyler, 446 U.S. 335. In such a case, “[i]f there

is any ‘adverse effect’ on the attorney’s performance,

prejudice is presumed and the defendant’s argument

prevails.” Freeman v. Chandler, 645 F.3d 863, 869 (7th Cir.

2011) (citing Hall, 371 F.3d at 973). This standard, as set

forth in Cuyler, applies “if the defense counsel was faced

with a choice between advancing his own interests above

those of his client.” Hall, 371 F.3d at 973 (citing Stoia v.

United States, 22 F.3d 766, 771 (7th Cir. 1994)). A petitioner

may show an adverse effect by demonstrating “that

there is a reasonable likelihood that his counsel’s performance would have been different had there been

no conflict of interest.” Hall, 371 F.3d at 974.

Under the second analytical framework where there

has been no “actual” conflict of interest alleged or shown,

a petitioner must establish that the conflict resulted in

ineffective assistance according to the familiar and more

demanding Strickland standard, whereby the petitioner

must demonstrate “that counsel’s representation fell
No. 11-3183 15

In moving to withdraw, Mr. Fabbri apparently did not

8

personally believe he had an actual conflict of interest, but

conceded that there was in his continued representation of

Blake an appearance of a conflict. Mr. Fabbri stated at the

hearing, in Blake’s presence: “I believe that there is a potential

for the idea that there could be an understanding by my client,

right or wrong, that there is an appearance that I may act or

react or give advice in confidence to a client based on my

situation. I don’t believe that’s true. I don’t consciously believe

I could do that . . . . But the fact is it’s not what I do, it’s the

appearance of what I do or don’t do.” A-78.

below an objectively reasonable standard of care, and

that there is a reasonable probability that but for

counsel’s unprofessional errors the trial outcome would

have been different.” Freeman, 645 F.3d at 869 (citing

Strickland, 466 U.S. at 687, 694).

The government argues here that Mr. Fabbri’s conflict was not an actual conflict of interest, based on the

precautions taken in “screening off” AUSA Killian and

the other Southern District of Illinois prosecutors from

Mr. Fabbri’s prosecution. Thus, there is no evidence 8

that Mr. Fabbri’s representation of Blake was incompatible with, or influenced by, the investigation into

Mr. Fabbri’s own suspected criminal conduct. Further,

there is no evidence, according to the government, establishing that Mr. Fabbri was aware that AUSA Killian

was a potential witness in the prosecution against him

(Fabbri), which defeats Blake’s argument that Mr. Fabbri

had an incentive to “curry favor” with the Southern

District of Illinois AUSAs. The district court sidestepped
16 No. 11-3183

A-11. 9

As noted above, in its motion seeking a determination 10

regarding the extent of Mr. Fabbri’s conflict, the government

stated it “believe[d] that Attorney Fabbri has an actual, or at

least a significant potential conflict of interest in representing

Byron Blake.” Respondent-Appellee’s App’x at 1. We do not

view that statement as a concession by the government that

an actual conflict existed. We have previously held that in

cases in which a defendant asserts that an investigation into

the criminal activities of his counsel creates a conflict between

the defendant’s interest in effective representation and the

attorney’s interest in protecting himself from the investigation,

an actual conflict arises “only where there is a danger that

[counsel] would ineffectively represent his client because of

fear that authorities might become aware of the attorney’s

own misconduct if he undertook effective representation.’ ”

United States v. Balzano, 916 F.2d 1273, 1293 (7th Cir. 1990). Here,

the criminal activity for which Mr. Fabbri was being investigated was fully known to the government and wholly

(continued...)

this issue of whether Mr. Fabbri possessed an actual or

potential conflict, finding it “beside the point,” because

Blake had entirely failed to establish either that his

defense was prejudiced or that Mr. Fabbri’s performance

was adversely affected by the conflict of interest.

9

1. Actual Conflict

We are not persuaded, based on the evidence before

us, that Mr. Fabbri possessed an actual conflict of interest

during the two months he represented Blake, but 10
No. 11-3183 17

(...continued)

unrelated to the charges against Blake. Likewise, Mr. Fabbri’s

case was being investigated by a separate U.S. Attorney’s office

under the direction of the Department of Justice. Thus,

Mr. Fabbri would have had no basis on which to fear that in

representing Blake in a case being prosecuted within the

Southern District of Illinois he would provide the U.S. Attorney’s office in the Central District additional evidence about

his own misconduct, or that he was somehow incented to

pull punches in Blake’s defense.

we concede that the appearance of a conflict of interest

was indeed strong. Even if there were a sound evidentiary

basis on which to base a finding of an actual conflict,

Blake has failed to establish that Mr. Fabbri’s performance

on his behalf was adversely affected by virtue of it, that is,

that Mr. Fabbri’s performance of his duties on behalf

of Blake would have been different, had there been no

conflict.

In his attempt to make the requisite showing under

Cuyler, Blake argues that Mr. Fabbri was trying to curry

favor with the government both when Fabbri advised

Blake to provide a proffer (even before he (Fabbri) had

reviewed all of the discovery in the case) and also

when Fabbri filed the December 15, 2006 motion to continue. Blake maintains that had Mr. Fabbri not been

conflicted, he would have acted otherwise on those two

occasions. There is simply no evidence to support these

contentions, however, and Blake’s assumptions cannot

support the weight of the claims he advances in this

regard.
18 No. 11-3183

The fact that Mr. Fabbri allowed or encouraged Blake

to make a proffer prior to his review of the government’s discovery does not, standing alone, raise a red flag

suggestive of a conflict of interest. It is not unusual for

Defendants to seek a strategic advantage in prosecutions

against them by voluntarily providing early proffers,

particularly in cases like this one which involve co-defendants. Any suggestion by Blake that Mr. Fabbri had an

ulterior motive in advising him to make a proffer to

the government is based on nothing more than Blake’s

suppositions.

Similarly, no facts have been adduced to support

Blake’s allegation that the reason Mr. Fabbri sought a

continuance on December 15, 2006 was because he

believed the government wanted him to do so or would

be inclined to view such a maneuver favorably. In his

motion requesting the continuance, Mr. Fabbri cited the

need for more time to review the discovery and represented that he had discussed with Blake the impact of

requesting additional time. Blake is left only with his

own speculations in arguing that the reason stated

by Mr. Fabbri for requesting the continuance was disingenuous. Nor is there any evidence that the government either wanted or wished that Mr. Fabbri

would file such a motion. At that early point in the

proceedings—when no more than twenty-four nonexcludable days had passed under the Speedy Trial Act –

the government could easily have asked for the continuance itself, if it chose to do so.

In short, there is no evidence to support Blake’s assertion that Mr. Fabbri “pulled his punches” or acted out of
No. 11-3183 19

Blake also argues that he is entitled to the automatic reversal 11

of his conviction or a remand for an evidentiary hearing under

Holloway v. Arkansas, 435 U.S. 475, 484-91 (1978), because the

district court knew or should have known about Mr. Fabbri’s

conflict of interest and failed to adequately address it. See

Holleman v. Cotton, 301 F.3d 737, 742 (7th Cir. 2002) (“Under

Holloway and Cuyler, a trial court has the duty to inquire

adequately into a trial counsel’s conflict of interest if it knows

or reasonably should know that a particular conflict exists.”).

However, we have recognized that “[s]ubsequent Supreme

Court decisions have limited the Holloway holding to situations in which the district court requires joint representation

over a timely objection.” Lafuente, 426 F.3d at 897 (citing Mickens

v. Taylor, 535 U.S. 162, 168-69 (2002); Cuyler, 446 U.S. at 346).

In Blake’s case, Mr. Fabbri’s conflict did not arise from joint

representation. And, in any event, even assuming the Holloway

standard applied here, Blake has failed to show that the

district court failed to adequately investigate a conflict it knew

or reasonably should have known existed.

Blake’s misplaced reliance on Holloway is an outgrowth of his

assertion that the trial judge had actual knowledge of

Mr. Fabbri’s conflict of interest as early as when Mr. Fabbri

(continued...)

“a fear of retaliation” by the government during the

time he was Blake’s counsel and nothing in the record,

based on our own review, gives rise to such an inference. To the extent that Blake contends that Mr. Fabbri

was incented to cooperate with the government or that

he acted in a manner he would not otherwise have done

to the detriment of Blake’s interests, there simply is no

evidence to support such arguments.11
20 No. 11-3183

(...continued)

first entered his appearance on October 30, 2006, based on a

prior instance in another case before that judge where a

similar charge had been leveled against Mr. Fabbri. However,

the most that can be said in terms of the trial judge’s independent, prior knowledge of Mr. Fabbri’s possible conflict of

interest was that the prior situation perhaps should have

raised a suspicion in the judge’s mind that Mr. Fabbri might

have a conflict of interest in Blake’s case. Such a suspicion

based on an arguably similar instance of another claim of

conflict of interest against Mr. Fabbri eight months earlier

cannot fairly be regarded as notice to the judge of the conflict

sufficient to require him to take some action to address it,

particularly given that the prior instance was resolved without

the judge ever having to adjudicate the issue and Mr. Fabbri’s

continued involvement as the defense counsel throughout

the entire proceedings. We hold with little difficulty that the

trial judge here did not have knowledge that Mr. Fabbri’s

representation posed any potential or actual conflict of

interest prior to the government’s filing of its notice in

Blake’s case, and once apprised of the potential conflict, the

trial judge inquired in timely fashion. Nothing about this

series of events indicates that the trial judge acted inappropriately or with dilatoriness in responding to the alleged

conflict of interest once he had knowledge of it.

2. Potential Conflict

Nor has Blake satisfied the more demanding Strickland

standards. Under Strickland, we need not dwell on

whether the quality of Mr. Fabbri’s representation was

lacking when measured against an objectively reasonable standard of care. Instead, we shall go directly
No. 11-3183 21

to the issue of whether there was any prejudice suffered

by Blake based on Mr. Fabbri’s performance. In doing

so, we look to determine whether there is a “reasonable

probability that, but for counsel’s unprofessional errors,

the result of the [trial] would have been different.” United

States v. Allen, 390 F.3d 944, 951 (7th Cir. 2004) (quoting

Hough v. Anderson, 272 F.3d 878, 891 (7th Cir. 2001)).

Again, after careful review, we find no find no basis on

which to conclude that, but for the conflict, the outcome

of Blake’s trial would have been different.

Blake attempts to establish prejudice based on his

having provided a proffer to the government during

the time Mr. Fabbri served as his counsel. We have addressed these facts previously in this opinion. Because

the district court barred any use of the evidence

supplied by Blake in his proffer for any purpose at trial,

any potential prejudice from the proffer was entirely

nullified. Blake has not contended that his proffer was

handled in a procedurally unusual or prejudicial way

by the government causing him some unfairness that

was not cured by the judge’s order in limine. Further,

Blake has not argued that his participation in the

proffer session in and of itself caused him some form

of unspecified prejudice. Accordingly, we find no evidentiary support for Blake’s assertion that his participation

in the proffer session prejudiced him in his defense

or changed the outcome of any proceeding or, in particular, his trial.

The only other prejudice claimed by Blake was that

the belated disclosure of his attorney’s potential conflict
22 No. 11-3183

caused a delay in his trial. Assuming such a delay, it is

of no legal consequence because Blake’s only entitlement to a particular trial date is his statutory right to a

trial within 70 non-excludable days under the Speedy

Trial Act. When that requirement is satisfied, there is

no other basis on which to find any legally cognizable

prejudice. Further, as we address below in a more comprehensive fashion, Blake’s rights under the Speedy

Trial Act were not violated. 

It deserves to be noted as well that whatever procedural

delays did occur resulted almost entirely from motions

filed on Blake’s behalf and for his benefit, all (with

the exception of the December 15, 2006 motion to continue) without objection from him. While it may be true

that pretrial activities did not proceed at a pace fast

enough to suit Blake, there has been no showing of

any prejudice to his defense based on this timetable.

No defendant is entitled by law to any particular trial

date, so long as the Speedy Trial Act requirements

have been met. 

Nor do we credit Blake’s attenuated theory that he

was prejudiced by Mr. Fabbri’s belated disclosure of

his conflict of interest, since the delay allowed the government additional time and opportunity to secure a

superseding indictment containing the two additional

felony charges against him. Again, Blake’s argument

is pure speculation because there is no evidence to

indicate that the government could not or would not

have secured the supplemental indictment at some

earlier point in time. In any event, we agree with the

district court’s observation that because the charges in
No. 11-3183 23

A-12. 12

both indictments included a conspiracy to distribute

and possess with intent to distribute in excess of 50 grams

of crack cocaine, whether the trial had occurred on

January 9, 2007 or March 27, 2007, the evidence against

Blake would have been the same. Thus, Mr. Fabbri’s 12

two month delay in resolving his conflict of interest

did not result in any prejudice to Blake’s defense.

Clearly, the criminal investigation against Mr. Fabbri

and his failure to inform Blake of it at the time Blake

retained him was at the very least problematic, and

perhaps lacking in terms of proper professional practice

standards. It was also, as the trial judge characterized

it, “unfortunate.” However, we find no grounds upon

which to conclude that Mr. Fabbri’s performance on

behalf of Blake was adversely affected by his conflict

of interest or that Blake’s defense was prejudiced,

pursuant to the Strickland standards, as a result of this

conflict. Accordingly, Blake’s claim of ineffective assistance

of counsel claim by Mr. Fabbri is unavailing, and we

affirm the denial of his § 2255 motion on this basis by

the trial court.

C. INEFFECTIVE ASSISTANCE CLAIM AGAINST

ATTORNEY STENGER

Blake claims that his replacement trial attorney,

Mr. Stenger, who was appointed by the court to

represent him when Mr. Fabbri withdrew, was

ineffective based on his (Stenger’s) failure to move
24 No. 11-3183

for dismissal of the indictment based on violations of

the Speedy Trial Act. The Act provides that a defendant

must go to trial within 70 days of either the date of

the issuance of an indictment or a defendant’s first appearance before a judicial officer, whichever is later.

18 U.S.C. § 3161(c)(1). If a defendant is not brought to

trial with that 70-day window, the indictment against

the defendant must be dismissed upon the defendant’s

motion. § 3162(a)(2). Dismissal may be with or without

prejudice. Id.

There is a series of statutorily permitted exclusions

from the running of the 70-day clock which reflect Congress’s understanding that a certain amount of scheduling flexibility is required by the courts in order to

properly, fairly, and efficiently conduct and complete

pretrial preparations. See § 3161(h)(1)-(8). Periods of

exclusion include “[a]ny period of delay resulting

from other proceedings concerning the defendant, including but not limited to . . . delay resulting from

any pretrial motion, from the filing of the motion

through the conclusion of the hearing on, or other

prompt disposition of, such motion . . . .” § 3161(h)(1)(D).

During the period when the events at issue here occurred, time attributable to these purposes was excluded, some automatically pursuant to the terms of

the Act when no showing of a causal connection

between the delay and the court’s actual consideration

of pretrial motions is required. United States v. Montoya,

827 F.2d 143, 150-51 (7th Cir. 1987). Whether to grant a

continuance along with the related decision(s) of

whether to exclude periods of delay under the Act are
No. 11-3183 25

Brief of Respondent-Appellee at 30.

13

matters entrusted to the sound discretion of the district

court, and any decision made does not constitute

reversible error absent a showing of abuse of discretion

by the court and of actual prejudice. United States v.

White, 443 F.3d 582, 588-89 (7th Cir. 2006) (citing United

States v. Taylor, 196 F.3d 854, 860 (7th Cir. 1999);

United States v. Marin, 7 F.3d 679, 683 (7th Cir. 1993)).

Blake was arraigned on October 30, 2006 and his trial

began on March 27, 2007. The time that elapsed between

his arraignment and the start of his trial, therefore, according to the government’s calculations, totaled

148 days, 85 of which were excludable under the Act,

leaving only 63 as non-excludable days, which, if

properly computed, is well within the 70-day statutory

limit. The government asserts that of the 85 excluded

days, 23 are attributable to the government, 21 are attributable to the district court’s initial order concerning

pretrial motions, and virtually all of the remaining

41 days are attributable to Blake’s motions or the

motions of his counsel filed on his behalf. 

The government submitted as a part of its briefing

on appeal the following chart, which details the respective time allocations and computations pursuant to provisions of the Act. The chart also contains cross-references

to the record, anchoring the time calculations to

events reported on the court’s docket. We reproduce

that chart here for its clarity and, as confirmed by our

review, its accuracy.13
26 No. 11-3183

Time Period Source Dates Time

Arraignment to

Trial

R. 9, R. 109 10-30-06 – 03-

27-06

148 days

Pretrial Motion

Period

R. 12 10-30-06 – 11-

20-06

-21 days

Defendant Motion to ContinueR. 27, R. 28 12-15-06 – 12-

18-06

-4 days

Government

Motion (Conf. of

Int.)

R. 32, R. 36 12-20-06 –

12-28-06

-9 days

Defendant Mot.

for Recons. of

Bond

R. 50, R. 55,

R. 57, R. 63

12-28-06 –

01-24-07

-27 days

Government

Speedy Trial

Motion

R. 69, R. 71 02-13-07 –

02-26-07

-14 days

Defendant Various MotionsR. 80-86 02-28-07 –

03-05-07

-6 days

Defendant Motion for ContinuanceR. 97, R. 104 03-20-07 –

03-23-07

-4 days

Nonexcludable

time

63 days

Blake disputes various portions of this chart as well as

the government’s computations. However, having failed

to present any Speedy Trial Act claim to the district court

in the form of a motion to dismiss the indictment, he

has waived this claim. The Act expressly provides that
No. 11-3183 27

defendants waive their rights under the Act when

they do not move to dismiss the indictment. 18 U.S.C.

§ 3162(a)(2) (“Failure of the defendant to move for dismissal prior to trial . . . shall constitute a waiver of the

right to dismissal under this section.”). Apparently prepared to concede a waiver, Blake resurrects the issue

by blaming his attorney for his ineffectiveness in

failing to raise the Speedy Trial Act violations before the

trial court. However, because Blake fails in his effort

here to demonstrate that the Act was in fact violated,

his counsel cannot be deemed ineffective for having

failed to file a motion to dismiss the indictment on

that basis.

We need not linger on the issue of whether Blake’s

rights under the Act were actually violated. In fact, rather

than focusing on the specific time computations, Blake

limits his § 2255 arguments to a generalized and multifaceted attack on the government’s alleged bad faith.

Blake alleges bad faith beginning when AUSA Killian

conspired with Mr. Fabbri to file the December 15, 2006

motion for continuance of the trial and thereafter in

retaliating against Blake for his resistance during the

pretrial hearing to a continuation of his trial date by

getting Mr. Fabbri removed as defense counsel in order

to secure a delay in Blake’s trial thereby allowing additional charges to be filed against him in the superseding indictment. Thus, he argues, beginning with that

first motion raising Mr. Fabbri’s conflict of interest, a

series of events was set into motion that unfairly

delayed his trial and allowed the trial court to disregard
28 No. 11-3183

Petitioner-Appellant Brief at 34.

14

Since the time of Blake’s trial, the Supreme Court in Bloate v. 15

United States, 559 U.S. 196 (2010) ruled that tolled time in

submitting and processing pre-trial motions is no longer

automatically excludable. Id. at 203-04. However, because the

law was clear at the time of Blake’s trial that the days

required to prepare pretrial motions were automatically

excludable, Mr. Stenger’s performance in failing to move to

dismiss the indictment based on this particular allocation of

time was clearly not deficient. See Knox v. United States, 400

F.3d 519, 522 (7th Cir. 2005) (“A failure to anticipate shifts

(continued...)

his rights from the earliest point(s) in this prosecution

forward to its conclusion.14

Despite Blake’s stringing together of this series of

procedural occurrences, we do not find in them, whether

considered individually or together, any evidence of

bad faith or of collusion between the government

attorneys and Blake’s initial counsel. These steps simply

track the progress of this prosecution. Blake’s attempt

to assign base motives to each phase of the litigation and

the respective participants does not add up. Further,

our review of the Speedy Trial Act computations confirms

the regularity of the process and of the trial court’s compliance with the Speedy Trial Act, as detailed below:

• The Pretrial Motion Period (the 21-days between

October 30, 2006 and November 20, 2006) was automatically excludable under the holding in

Montoya, 827 F.2d at 151-53.15
No. 11-3183 29

(...continued)

in legal doctrine cannot be condemned as objectively deficient.”) (citation omitted). 

• Defendant’s Motion to Continue is an excludable

pretrial motion, even though Blake did not consent to

its filing. In United States v. Gearhart, 576 F.3d 459, 463

n.3 (7th Cir. 2009), we held that under the Act,

counsel is not required to obtain the defendant’s

consent prior to making a tactical decision in a

case, such as the decision to seek a continuance. (The

excludable period was 4 days: 12/15/06 to 12/18/06.)

• The Government’s motion seeking a determination

of whether Attorney Fabbri had a conflict of

interest was excludable. Although the record reflects

AUSA Killian’s having had limited knowledge

that Mr. Fabbri was under investigation from the

beginning of Blake’s prosecution, when Mr. Fabbri

entered his appearance, he was not aware of a

conflict until December 18, 2006, when he first

learned that an indictment against Mr. Fabbri was

imminent and that Blake wanted to proceed to

trial without delay. At that point, AUSA Killian

promptly withdrew from the case, and replacement AUSAs immediately filed the motion with the

court raising the conflict issue. The government

gained no improper advantage from this delay and

Blake has failed to establish that this motion was

filed in bad faith in an attempt to delay Blake’s trial
30 No. 11-3183

or capitalize in some other way on the situation. (The

excludable period was 9 days, running between

12/20/06 to 12/28/06.)

• Defendant’s Motion for Reconsideration of Bond was

an oral motion made by Blake’s new counsel upon

replacing Mr. Fabbri. We agree with our sister

circuits that oral motions toll the clock the same as

written motions for purposes of Speedy Trial Act

calculations. See, e.g., United States v. Broadwater, 151

F.3d 1359, 1361 (11th Cir. 1998) (per curiam); United

States v. Rodriquez, 63 F.3d 1159, 1164-65 (1st Cir.

1995) (citations omitted); United States v. Moses, 15

F.3d 774, 776 n.3 (8th Cir. 1994) (citation omitted);

United States v. Nixon, 779 F.2d 126, 130-31 (2d Cir.

1985). Thus, this period of exclusions was 27 days:

12/28/06 to 01/24/07.

• The Government’s Speedy Trial Motion was filed

on 2/13/07 and was resolved on 2/26/07. The

excludable time for this pretrial motion was 14 days.

• Defendant’s counsel filed various pretrial motions

beginning 2/28/07 through 3/5/07, resulting in 6 days

of excludable time.

• Defendant filed a motion for continuance on 3/20/07

which was pending until 3/23/07, amounting to a

total of 4 excludable days.

Thus, it is clear that the tally of excludable time concluded

with 85 days. The non-excludable time was 63 days. The

total amount of time consumed between the date of

Blake’s indictment and the date of trial was 148 days.
No. 11-3183 31

The parties have focused their arguments solely on 16

whether counsel was ineffective for failing to seek dismissal

based on a violation of Blake’s statutory rights under the

(continued...)

These calculations clearly comply with the 70-day-to-trial

requirement in the Act.

Blake’s reference to the trial judge’s refusal to make

“ends of justice” findings in response to the government’s

requests on three occasions (December 28, 2006; January 9,

2007; and February 13, 2007) is a red herring; in no way

does it serve as evidence of the government’s bad faith.

The computations under the Act were excludable

whether or not the judge made such a determination, as

shown above, and it is beyond dispute that a judge possesses broad discretion to make the rulings considered

by him/her to be appropriate under the circumstances

consistent with the Act’s purposes and dictates. The

judge’s refusal to make “ends of justice” findings here

signals nothing with regard to the government attorneys’

bad faith or the reasonableness and sufficiency of

Mr. Stenger’s performance.

A claim of ineffective assistance of counsel must be

supported by objective evidence, not merely by the

movant’s own self-serving testimony. See Cooper v. United

States, 378 F.3d 638, 641-42 (7th Cir. 2004). Here, we have

only Blake’s self-serving claims. No violation of the

Speedy Trial Act occurred in bringing his case to trial,

which defeats Blake’s claim that his counsel was ineffective

in failing to move for dismissal of the indictment.16
32 No. 11-3183

(...continued)

Speedy Trial Act and have not put forth any constitutional

arguments regarding whether counsel was ineffective for

failing to investigate and pursue a speedy trial claim under

the Sixth Amendment. This is likely because a constitutional

speedy trial violation generally requires a showing of a much

longer period of delay to trigger relief than is at issue here.

“Simply to trigger a [constitutional] speedy trial analysis, an

accused must allege that the interval between accusation

and trial has crossed the threshold dividing ordinary from

‘presumptively prejudicial’ delay . . . .” Doggett v. United

States, 505 U.S. 647, 651-52 (1992) (citing Barker v. Wingo, 407 U.S.

514, 530-31 (1972)). As we have recognized, “[a]s a general

matter, courts have found delays approaching one year to be

presumptively prejudicial.” White, 443 F.3d at 589-90 (citing

United States v. Ward, 211 F.3d 356, 361 (7th Cir. 2000)). The

constitutional right attaches only after an arrest, an indictment,

or some other form of official accusation. United States v.

Souffront, 338 F.3d 809, 835 (7th Cir. 2003) (citations omitted).

Here, Blake was initially indicted on October 19, 2006 and

arraigned on October 30, 2006. A superseding indictment was

returned on March 21, 2007 and Blake’s trial began on March 27,

2007. The approximately five month delay between Blake’s

indictment and trial is therefore plainly not within the range of

delay that we have found to be long enough to warrant a

more in-depth analysis. Compare United States ex rel. Fitzgerald

v. Jordan, 747 F.2d 1120, 1127 (7th Cir. 1984) (finding a pretrial

delay of eight months presumptively prejudicial) with Hogan

v. McBride, 74 F.3d 144, 145 (7th Cir. 1996) (finding that a

pretrial delay of approximately eight months in a robbery

case did not constitute pretrial delay).
No. 11-3183 33

D. INEFFECTIVE ASSISTANCE OF ATTORNEYS

BLEGEN AND BRANDSTRADER

Blake’s final § 2255 claim is that his attorneys on direct

appeal, Messrs. Blegen and Brandstrader, were ineffective

in failing to raise on appeal the deprivation of his Sixth

Amendment right to counsel of his own choosing, based

on the district judge’s allowance of Mr. Fabbri’s motion

to withdraw without first determining whether disqualification was warranted and without providing Blake

an opportunity to waive any conflict of interest Fabbri

might have had. In circumstances such as these, where

an ineffective assistance claim is based on an attorney’s

failure to raise a viable issue on appeal, “we must first

analyze the trial court record to determine whether

[the defendant’s] appellate attorney, in fact, ignored

‘significant and obvious’ issues.” Suggs v. United States,

513 F.3d 675, 678 (7th Cir. 2008) (quoting Gray v. Greer,

800 F.2d 644, 646 (7th Cir. 1985)). For an attorney’s performance to be considered ineffective on such grounds,

it must be shown that the neglected issues are “clearly

stronger” than the arguments that actually were raised

on appeal. Suggs, 513 F.3d at 678. No such showing has

been made here; indeed, we believe none could reasonably be made.

Initially, as recognized by the district judge, Blake’s

argument makes no sense given his contemporaneous

contention in this appeal (as well as in his § 2255 petition)

that Mr. Fabbri was ineffective based on a conflict of

interest. In effect, Blake’s argument is that he was

denied the right to choose ineffective counsel. Given the
34 No. 11-3183

A-14. 17

obvious weakness of this argument, appellate counsel

could reasonably have believed that it did not warrant

advancement on appeal. See Knox v. United States, 400

F.3d 519, 522 (7th Cir. 2005) (“A lawyer who concentrates

attention on issues that have the best chance of success

does not display objectively deficient performance, and

thus does not render ineffective assistance of counsel.”).

More significantly, contrary to Blake’s contention,

before the district judge granted Mr. Fabbri’s motion and

allowed him to withdraw, he expressly engaged Blake

by providing him with an opportunity to waive

Mr. Fabbri’s alleged conflict of interest, inquiring: “Do

you want [Frank Fabbri] to be your lawyer or not? That’s

what it amounts to.” Blake responded, “I don’t see no

reason why he should. I feel like he is in the same

situation I’m in.” In light of the fact that Blake 17

explicitly refused to waive the conflict and willingly

consented to Mr. Stenger’s appointment as replacement

counsel, it clearly was not unreasonable for Blake’s appellate counsel to omit this issue on appeal in order to

concentrate on other, stronger arguments. Accordingly,

we affirm the district court’s ruling that Blake has raised

no viable claim that should have been appealed, so that

a failure to do so constitutes the ineffective assistance

of appellate counsel.
No. 11-3183 35

III. CONCLUSION

As explained above, Blake has failed to establish that

any of his attorneys provided him with ineffective assistance of counsel either during his prosecution or on

appeal. The district court’s denial of his § 2255 motion

is therefore AFFIRMED.

7-25-13